Siebert v. Supreme Council of the Order of Chosen Friends

• Decision Date: 09 November 1886
• Parties: CHARLES SIEBERT, Defendant in Error, v. SUPREME COUNCIL OF THE ORDER OF CHOSEN FRIENDS, Plaintiff in Error.
• Court: Missouri Court of Appeals

23 Mo.App. 268

CHARLES SIEBERT, Defendant in Error,

v.SUPREME COUNCIL OF THE ORDER OF CHOSEN FRIENDS, Plaintiff in Error.

St. Louis Court of Appeals, Missouri.

Nov. 9, 1886.

ERROR to the St. Louis Circuit Court, DANIEL DILLON, Judge.

Affirmed.

LOUIS A. STEBER, for the plaintiff in error: The court on the case as a whole should have sustained the defendant's motion for judgment non obstante veredicto. Powell v. Railroad, 76 Mo. 85; Borgraefe v. Knights, 22 Mo. App. 127; Slayback v. Girkhardt, 1 Mo. App. 333; Maser v. Ins. Co., 2 Mo. App. 408; Eaton v. Knights, 22 Cent. L. J. 560; St. Patrick v. Mc Vey,92 Pa. St. 510. The deceased had knowlege of the assessment and when it was due and payable. Hollister v. Insurance Co., 118 Mass. 479; Speck v. Riggin, 40 Mo. 405; Maupin v. Emmons, 47 Mo. 304; Stule v. Insurance Co., 3 Mo. App. 207. That notice of the assessment was not mailed or delivered on its date, ample time for payment being had, is immaterial. Ancient Order v. Moore, 9 Ins. L. J. 539. Notice means the means of knowledge of which a person wilfully neglects or refuses to take anvantage. Lee v. Turner, 15 Mo. App. 213; Hill v. Tissier, 15 Mo. App. 300. Punctual payment is the essence of the contract. The orders could not exist and do business without it. Klein v. Ins. Co., 104 U. S. [14 Otto] 88; Thompson v. Ins. Co., 104 U. S. [14 Otto] 258; McMurray v. Knights, 13 Ins. L. J. 569 [472.]

LEO RASSIEUR, DEXTER TIFFANY, and B. SCHNURMACHER, for the defendant in error: The answer denied the vital allegation of the petition, to-wit, that Gertrude Siebert, at the time of her death, was a member in good standing. It rested on the plaintiff to show this. The burden of proof was, therefore, upon him. Porter v. Jones, 52 Mo. 399. The deceased was a member in good standing once and a state of facts once shown to exist will be presumed to continue until the contrary be shown. Cargile v. Wood, 63 Mo. 501; Ansyln v. Franke, 11 Mo. App. 598; Supreme Lodge v. Johnson, 78 Ind. 110. It is for the jury, under all the circumstances, to say whether the notice was in point of fact sent, or whether the secretary might not have been honestly mistaken in supposing that he had sent it. Borgraefe v. Supreme Lodge, 22 Mo. App. 127. Courts regard forfeitures with great disfavor, and the proof to establish them must be clear and satisfactory. Borgraefe v. Supreme Lodge, 22 Mo. App. 127; Froehlich v. Ins. Co., 47 Mo. 406; Sims v. Ins. Co., 47 Mo. 14; Hirschl on Fraternities, 34; Supreme Lodge v. Abbott, 82 Ind. 1.LEWIS, P. J., delivered the opinion of the court.

The defendant is an incorporated benevolent association which issues benefit certificates to its members for the payment of a fixed sum, upon the death of a member, to such person as shall be designated in the certificate. Gertrude Siebert (now deceased) was the wife of the plaintiff and a member of the association, holding a certificate for the payment of two thousand dollars to her husband at her death. The plaintiff had a verdict and judgment for that sum with interest, upon which the defendant prosecutes this writ of error.

The supreme council acts upon its members through the subordinate councils to which they respectively belong. Gertrude Siebert belonged to Pearl Council number fifteen, located in the city of St. Louis. Her application for membership contained the following:

“If admitted, I agree to make punctual payment of all dues, and assessments for which I may become liable, and to conform in all respects to the laws, rules, and usages of the order, now in force, or which may be adopted by the same. * * * I do hereby further consent and agree that * * * my suspension * * * from * * * the order shall forfeit my rights to all benefits and privileges therein; nor shall it be lawful in case of my death during such suspension, for any of my heirs, devisees, or legatees to receive any benefit or endowment whatever from the supreme or any grand or subordinate council of Chosen Friends.”

The membership and benefit certificate provided for the payment of the benefit “in the manner and subject to the conditions set forth in the laws governing said relief fund and in the application for membership,” and that the certificate should be in force and binding “so long as said member shall comply with the requirements of the constitution, laws, and regulations adopted for the government of the order; otherwise to be null and void.” Among the requirements of the constitution, laws, and regulations referred to are the following:

“Sec. 5. When an assessment is made it shall be the duty of the secretary to at once notify every member liable to the assessment. The assessment notice shall be furnished by the supreme council and shall bear the seal of the subordinate council, with the signature of the secretary attached; each member shall pay the amount due, to the secretary, within thirty days from the date of such notice, and any member failing to pay such assessments within thirty days shall forfeit all rights and claims to benefits under the relief fund law, and shall be reported suspended from beneficiary membership, by the secretary, in his report to the supreme treasurer, and to the council at its next regular meeting thereafter, and shall stand so suspended until all arrearages and fines shall have been paid to the secretary, and all other laws governing reinstatements have been fully complied with. Any council failing to report such delinquent, shall pay, as a fine, out of its general fund, an amount equal to the amount of all assessments which the member would have paid had he or she remained in good standing. The notice provided for by section 1, article 8, of the subordinate council constitution, is a legal notice for the purposes of this section, and shall be so regarded.”

And section 1, article 8, concerning notices, above referred to, reads as follows:

“Sec. 1. The secretary shall make out and deliver to each beneficiary member in good standing, either in person, to some person authorized by the member to receive notice, or by depositing the same in the post office directed to the member's last known address, a written or printed notice of each assessment on account of the relief fund issued by authority of the supreme council, and such a notice so delivered shall be deemed and held to be legal notice of such assessment. The secretary, in making these notices, is required to use the official notice blank furnished by the supreme council, but the use of any other form or blank shall not invalidate the notice to the member, but only render the secretary subject to discipline.”

The defence is, that Mrs. Siebert, although duly notified, failed to pay assessment number 72, for $1.20, which was declared on April 15, 1885, and payable on or before May 15, 1885. She died on May 16, 1885. It is not pretended that this assessment was paid within the time required, or at any time before Mrs. Siebert's death. The controversy turns upon the question whether she was so notified or informed of the assessment as to incur a forfeiture by its non-payment. The plaintiff here holds that the notice given, in order...