Sterling v. Head Camp, Pacific Jurisdiction, Woodmen of the World

• Decision Date: 30 March 1905
• Docket Number: 1548
• Court: Utah Supreme Court
• Parties: RETTA STERLING, Respondent, v. THE HEAD CAMP, PACIFIC JURISDICTION, WOODMEN OF THE WORLD, a Corporation, Appellant

80 P. 375

28 Utah 505

RETTA STERLING, Respondent, v. THE HEAD CAMP, PACIFIC JURISDICTION, WOODMEN OF THE WORLD, a Corporation, Appellant

No. 1548

Supreme Court of Utah

March 30, 1905

Appeal from the Third District Court, Salt Lake County.--Hon. T. D Lewis, Judge.

Action to recover a death benefit. From a judgment in favor of the plaintiff, the defendant appealed.

REVERSED.

Messrs Lee & Sweet for appellant.

A contract of insurance never becomes complete until the last act necessary to be done by either party has in fact been done, although one side or the other may conditionally bind itself by a proposition, which when unconditionally accepted ripens the negotiations into a contract. Bacon's Ben Soc., sec. 272; Niblack Ben Soc., sec. 139, p. 280; Joyce on Ins., sec. 70; Ray v. Ins. Co., 126 N.C. 166; McDonald v. Ins. Soc., 108 Wis. 213; Reese v. Ins. Soc., 111 Ga. 482; Pottsville Ins. Co. v. Minngua Co., 100 Pa. 137; Post v. Ins. Co., 52 N.Y.S. 910; McClavee v. Life Soc., 55 N. J. Law, 187; Ins. Co. v. Rudolph, 45 Tex. 454; Wilcox v. W. O. W., 76 Mo.App. 573; Aid Ass'n v. Brochter, 91 N.W. 379 (Neb. July, 1902), Ormond v. Ass'n, 96 N.C. 158, 1 S.E. 796; McLendon v. W. O. W., 64 S.W. 36, 106 Tenn. 695, 52 L.R.A. 444; Benefit Soc., sec. 274.

J. E. Frick, Esq., and G. M. Sullivan, Esq., for respondent.

STRAUP, J. McCARTY, J., concurs. BARTCH, C. J. dissenting.

OPINION

STRAUP, J.

Appellant is an incorporated fraternal and beneficial society, on the lodge plan. John C. Sterling in October, 1898, became a member of the lodge, and there was issued to him a benefit certificate, which will be called number 1, and in which Elizabeth Lowery was named the beneficiary, and by the terms of which she was entitled to participate in the benefit fund, to the amount of $ 2,000, upon the death of the said Sterling. The latter part of 1900 said Sterling, contemplating marriage with the plaintiff, desired to change the name of the beneficiary in said certificate to plaintiff's name. The certificate and the constitution and by-laws of the order provide that, if a member desires a change of any beneficiary, he shall deliver to the clerk of his camp his benefit certificate, with instructions indorsed thereon stating the change and the name of the new beneficiary, and a request to the head clerk to cause a new benefit certificate to be issued, to cancel the existing certificate, and a requirement that he make a certain payment therefor. Thereupon the clerk of his camp forwards said certificate so endorsed to the head clerk, who in this case was at Denver, Colorado, who thereupon prepares a new certificate, and forwards it to the camp clerk for signature by the local consul commander and the applicant before delivery. It also appears that, by the express terms of the said benefit certificate and the constitution and bylaws of the order, the said Sterling was required to pay certain dues and assessments every month in advance, in order to be in good standing and to keep alive the said certificate. These he paid and kept in good standing to and including the thirty-first day of December, 1900. He paid no more dues or assessments thereafter. On July 23, 1901, he made written application for membership and benefits in the same camp; and, so far as material here, his application therefor reads as follows: "I hereby make application for membership and benefit upon my life as follows." Then follows declarations to the medical examiner, and concerning his history and health and other matters; a request that the benefits be paid to plaintiff; and then: "I waive for myself and beneficiary all claims for benefit under this application until I shall be approved by the head physician, shall be regularly introduced, and shall deposit an assessment and such other amounts as are required by the constitution and bylaws, and receive a certificate of membership in the order." This application was signed by him. His initiation fee of $ 5 was paid. In accordance with the rules of the order, his application was favorably received, and the applicant approved by the head physician. On the twenty-ninth day of July, 1901, a certificate, in which plaintiff was named as beneficiary, was signed by the head camp, defendant herein, by its head consul, at Denver, and was forwarded to the

clerk of said local camp at Salt Lake City to be signed by the local consul commander, camp clerk, and the applicant, before delivery, which said certificate was received by the said clerk about July 31st. On August 1st the said Sterling was notified to appear at the lodge rooms on August 6th for initiation, but he failed to do so. He was also notified to be at Saltair Beach on August 7th, and there to be initiated. There is proof that he was at the beach on said date, but the proof is not sufficient that he presented himself for initiation; but, to the contrary, there is proof that he did not do so. And the evidence also shows that the camp in which he sought membership did not then initiate any one at the beach. But it is an admitted fact that the said Sterling was not initiated nor obligated, nor at all introduced, after his said application for renewal of membership was made. Regular meetings of the camp in which he sought membership were held every Tuesday evening in Salt Lake City, where the applicant resided, but he did not present himself at any of such meetings, nor did he at all attend any one of them. Nor did he deposit or pay any camp dues or assessments of any kind. The said Sterling died the thirteenth day of December, 1901. But no dues or assessments of any kind had been paid by him after November 19, 1900. The said certificate, No. 2, was not signed by the local consul commander, nor by the applicant, and was not delivered, but remained in the hands of the local camp clerk at the time of Sterling's death. By express provisions of the said certificate, the laws of the society were made a part thereof. Among other things, the certificate, as well as the laws of the society, provided that the applicant shall faithfully keep his agreements, and pay all assessments and dues that may be levied during the time he shall remain a member; that the said member must be in good standing at the time of his death according to the constitution and laws of the head camp and the by-laws of the camp of which he is a member, as a condition precedent to the right

of any beneficiary to receive any benefit whatever upon his death; that any member who fails to pay his camp dues or benefit assessments shall stand suspended, and, until and unless reinstated, neither he nor his beneficiary shall be entitled to any rights or privileges of a member of the order; that any person, to become a benefit member of any camp, must pay to the clerk of the camp an introduction fee, to include certificate fee to the head camp, and one advance benefit assessment. It is also provided by the constitution and by-laws that, in making application for membership, it shall contain the clause contained in deceased's application, "I waive for myself and my beneficiary all claim for benefit under this application until I shall be approved by the head physician, shall be regularly introduced, and shall deposit an assessment and such other amounts as are required by the constitution and by-laws, and receive a certificate of membership in the order." It is further provided that a candidate must present himself for adoption within four weeks after notice of his acceptance, or forfeit his entrance fee, unless excused by a two-thirds vote of the camp, but in no case can more than three months elapse from date of certificate. It is further provided, "The liability of the head camp to any benefit member shall not commence until his actual introduction to the protection degree, receipt of his benefit certificate, and the payment by said member of an introduction fee, camp dues and advance assessment or assessments levied and payable during the month of his introduction, and receipt of certificate." By section 10 it is further provided that "a member of any camp who has been suspended for more than six months cannot be reinstated, but if he then desires to renew his membership in the order he must surrender his benefit certificate or make affidavit of its loss or destruction and apply for membership under the same terms as any person who has not been a member of the order except that he shall not be required to be again formally introduced in the ritual of the protection degree." It is also provided: "Any benefit member of any camp who, while in good standing, becomes sick or disabled and on account thereof is unable or finds it difficult to continue payment of assessments and camp dues during illness or inability may nevertheless continue to be in good standing under the following terms and not otherwise, viz.: Prior to becoming delinquent he shall notify the clerk of his camp of his illness or disability and a desire that the camp maintain him in good standing and deliver to the clerk a certificate of a physician concerning his illness and the nature thereof. The clerk, on being satisfied that such illness exists, shall notify the consul commander and banker. In such case he shall not be required to pay any camp dues during such illness, but the same shall be paid to the head camp from the general fund. To obtain benefit of this section members must give notice to the clerk before they become delinquent except in such extraordinary cases of sudden illness or accident to the member in good standing which renders it impossible for the member to give the notice before becoming delinquent."

Plaintiff testified that on August 7 or 8, 1901, the said Sterling took sick, but was able to be out and around. It was further shown...