Smith v. Sovereign Camp of Woodmen of the World

• Decision Date: 23 December 1903
• Citation: 77 S.W. 862,179 Mo. 119
• Parties: SMITH et al. v. SOVEREIGN CAMP OF WOODMEN OF THE WORLD.
• Court: Missouri Supreme Court

77 S.W. 862

179 Mo. 119

SMITH et al. v. SOVEREIGN CAMP OF WOODMEN OF THE WORLD.

Supreme Court of Missouri, Division No. 2.

December 23, 1903.

BENEFICIARY ASSOCIATION—FORFEITURE OF CERTIFICATE—NONPAYMENT OF DUES—EXCUSE— NOTICE OF MEMBER'S SICKNESS—EVIDENCE — INSTRUCTIONS — PLEADING — DEPARTURE.

1. Where the petition alleged that deceased was a member in good standing, at the time

of his demise, of a beneficiary association, and the answer alleged that he had been suspended for nonpayment of dues, allegations of the reply that he was unconscious at the time the last dues were payable, and that written notice of his sickness had been given the order, and it was its duty to pay the dues, do not constitute a departure for which the reply should be stricken out.

2. The admission of improper testimony without objection does not render proper the admission of subsequent testimony to the same effect over objection.

3. Where the constitution and by-laws of a beneficiary association provide that, if fees are not paid when due, the member's certificate shall be void, and continue so until payment, such nonpayment works a forfeiture without action of the lodge, notwithstanding the member was delirious and unconscious when they became due, unless he had some lawful excuse for not paying them.

4. The forfeited certificate of a member of a beneficiary association cannot be renewed after his death where the constitution and by-laws suspended it ipso facto for the nonpayment of an assessment.

5. The custom of the clerk of a local camp of a beneficiary association of accepting the dues of members in good health five days after they become due, being in accordance with the constitution and by-laws of the order, is no evidence of a waiver of payment when due by a sick member.

6. Where the by-laws of a beneficiary association provide that the local camp shall pay the dues of a sick member, provided he shall notify the clerk in writing, such notice may be written and signed by any one knowing the facts.

7. Where the by-laws of a beneficiary association provide that, if a member become sick and unable to pay his dues, the local camp shall pay them, provided he shall notify the clerk of the disability, the notice is insufficient where it does not state that he is unable to pay them.

8. Where a notice required by the by-laws of a beneficiary association should state that the member was sick and unable to pay his dues, an instruction submitting the question whether such a notice was given was erroneous, where the notice relied on contained no reference to the member's inability to pay the dues.

9. Where an instruction calls attention to evidence that the clerk of a local camp of a beneficiary association received his mail at a certain office, and that a notice was addressed to him at that office, and states that these circumstances may be taken into consideration, to determine whether the notice was received, and the jury, if they so find, may infer that the notice was received, it is erroneous, as being a comment on the evidence.

10. The proposed amendment to the state Constitution (article 2, § 28) providing that, in the trial by jury of civil cases in courts of record, three-fourths of the jury concurring may render a verdict, has been legally adopted, and become a part of the Constitution.

Appeal from Circuit Court, Cooper County; Jas. E. Hazell, Judge.

Action by William Smith and others against the Sovereign Camp of the Woodmen of the World on a beneficiary certificate. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

Brome & Burnett and J. W. Jamison, for appellant. J. F. Rutherford, for respondents.

BURGESS, J.

Defendant is a fraternal beneficiary association, incorporated under the laws of the state of Nebraska, issues certificates in the nature of life insurance policies on the lives of its members in the nature of life insurance, and is authorized to transact business as such association in this state. There was a local camp of defendant order at the village of Gooch Mill, in Cooper county, Mo. One J. E. Smith was a member of said camp, and held a beneficiary certificate of defendant, by the terms of which, upon the death of said member while in good standing in defendant order, the plaintiffs in this suit were entitled to receive an amount not to exceed the sum of $2,000, based upon the proceeds of one assessment of all members of defendant order. Smith died on January 6, 1900. His beneficiaries instituted this suit for recovery of the amount specified in said certificate. The suit is brought upon the theory that the deceased at the date of his death was a member in good standing of defendant order, and that he had paid all dues and assessments levied against him, and that his certificate was in full force and effect. By its answer, defendant denied the good standing of the deceased, denied that he had paid assessments and dues as required, and affirmatively averred that the deceased failed to make the payment of assessments and dues due from him and payable to the clerk of the local camp on or before the 1st day of December, 1899. And that "at the time of the death of said Smith he had not paid the said assessments and dues, and that at the date of his death said Smith was and had been suspended from said order, and all rights and benefits under and by virtue of his beneficiary certificate, and his membership had been, and was, absolutely forfeited, and said beneficiary certificate was null and void, and the plaintiffs had no rights thereunder." To the answer plaintiffs filed a reply, in which it is stated that deceased [became sick and unconscious, and that on the 2d day of December, 1899, while in that condition, he was suspended by the local camp; that prior to his suspension, and while sick, he had served said camp with notice, as provided by by-laws and constitution of defendant, of such sickness, and that it thereupon became and was the duty of said local camp to pay his assessments and dues, and that, if it failed to do so, it was not the fault of said deceased; and that defendant is estopped from denying that said dues were not paid]. Defendant filed a motion to strike out this part of the reply included in brackets, upon the ground that it constituted a departure from the cause of action declared upon in the petition. This motion was overruled, and defendant excepted.

At the trial the application of deceased for membership in defendant order, together with the beneficiary certificate, and such sections of the constitution and by-laws of defendant order as bear upon the issues involved, were read in evidence. By a stipulation read in evidence on behalf of defendant, it was admitted that in the month of October defendant levied an assessment against all members, known as No. 108, and that the same was due and payable by each and every of such members during the month of November, 1899, and on or before December 1, 1899; that said assessment was regular in every respect, and that under it there was due from said deceased, upon the certificate named in plaintiff's petition, the sum of $1; that there were due from him emergency fund dues in the sum of 10 cents, and camp dues in the sum of 15 cents; and "that said deceased failed and neglected to pay any and all of said amounts on or before December 1, 1899." It is further admitted that the amounts so due were never thereafter paid, and that said Smith also failed to pay assessment No. 109, levied upon all members of defendant order in good standing, and due and payable on the 1st day of January, 1900. Plaintiffs introduced testimony tending to show that on the 27th day of November, 1899, C. E. Smith, a brother of the deceased, wrote to B. F. Bedwell, the clerk of the local camp of defendant order, the following note: "Gooch Mill, Mo., Nov. 27, 1899. Mr. B. F. Bedwell—Dear Sir: I am requested to notify you that my brother Jasper is sick, and I wish you would see how his standing in the lodge is; fix his dues up all O. K., and I will settle with you. Yours respectfully, C. E. Smith"—and that he inclosed the same in an envelope, which he stamped and directed to the said Bedwell, at Gooch Mill, and then placed same in said post office. Defendant objected to the reading of said notice in evidence for the reason that it was wholly insufficient as a notice under the constitution and by-laws of defendant's order, and for the further reason that the mere depositing of the letter in the post office was not sufficient. These objections the court overruled, and defendant excepted. Over the objections of defendant, plaintiffs were permitted to introduce evidence tending to show that the said deceased was delirious and unconscious during the greater part of the time of his last illness, to which ruling of the court defendant also excepted. Lottie Smith, widow of the deceased, was a witness on behalf of defendant, and stated, in substance, that her husband was first taken sick on Tuesday before Thanksgiving, in November, 1899. Tuesday before Thanksgiving, was the 28th day of November. She testified further that on Monday, the day before, which was on November 27th, her husband was at Boonville. This was the day on which C. E. Smith says he wrote and mailed the letter to Bedwell. She also stated that C. E. Smith did not call to see his brother until more than a week after he became sick. Dr. Wilson, who was a witness on behalf of plaintiffs, testified that he was first called to visit deceased on November 29th. B. F. Bedwell, who was a witness on behalf of the defendant, testified that he was clerk of the local camp of defendant order; that he resided within four or five miles of the town of Gooch Mill, which was his post office, but that he never received the letter alleged to have been mailed to him November 27, 1899, until the 1st day of February, 1901, when it came to him inclosed in another envelope, bearing the postmark of the...