The Modern Woodmen of America v. Breckenridge

• Decision Date: 01 January 1907
• Docket Number: 14,932
• Citation: 89 P. 661,75 Kan. 373
• Parties: THE MODERN WOODMEN OF AMERICA v. MYRTLE BRECKENRIDGE et al
• Court: Kansas Supreme Court

89 P. 661

75 Kan. 373

THE MODERN WOODMEN OF AMERICA v. MYRTLE BRECKENRIDGE et al

No. 14,932

Supreme Court of Kansas

January 1, 1907

Error from Allen district court; OSCAR FOUST, judge. Opinion filed March 9, 1907. Affirmed.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. FRATERNAL INSURANCE--Benefit Certificate Providing for Forfeiture for Intemperance Held Self-executing. A condition in a fraternal benefit certificate that "if the member . . . shall . . . become so far intemperate in the use of alcoholic drinks, or the use of drugs, to such an extent as to permanently impair his health, or to produce delirium tremens, . . . then this certificate shall be null and void and of no effect, and all moneys which shall have been paid, and all rights and benefits which may have accrued on account of this certificate shall be absolutely forfeited," is self-executing.

2. FRATERNAL INSURANCE--Knowledge that Insured Has Violated By-laws--Waiver of Forfeiture Clause. A subordinate lodge of a mutual benefit association which has the power to discipline and expel a member for violating the by-laws of the association, possessing knowledge that a member has forfeited his benefit certificate by violating the by-laws of the association, waives the right of the association to insist upon the forfeiture by continuing to receive his dues and in all other respects treating him as a member until his death.

Truman Plantz, and McClain & Apt, for plaintiff in error.

Travis Morse, for defendants in error.

OPINION

GREENE, J.:

The plaintiffs in this action sought to recover on a benefit certificate, issued January 2, 1897, by the Modern Woodmen of America to Thomas E. Kelly. The case was tried to the court and judgment rendered in favor of the plaintiffs. The defendant prosecutes this proceeding in error.

Kelly died February 6, 1905, a member in good standing upon the records of Iola Camp No. 961 of the Modern Woodmen of America, located at Iola, Kan., the camp of which he originally became a member. Kelly's certificate contained the following conditions:

"If the member holding this certificate shall be expelled by his local camp, or become so far intemperate in the use of alcoholic drinks, or the use of drugs, to such an extent as to permanently impair his health, or to produce delirium tremens, . . . then this certificate shall be null and void and of no effect, and all moneys which shall have been paid, and all rights and benefits which may have accrued on account of this certificate shall be absolutely forfeited."

The by-laws of the association contained similar provisions.

The evidence shows that at least two years before his death Kelly was an habitual and excessive user of intoxicating liquors, to such an extent as to impair his health and produce delirium tremens, and that he died of alcoholic dementia.

The question to be determined arises upon the pleading of the forfeiture proviso in the certificate and the reply thereto that the corporation by its conduct had waived the forfeiture. A mutual benefit association may impose prohibitive conditions in its benefit certificate upon the future conduct of its members, the indulgence of which would impair the health or endanger the life of such members, and we find that the dangers most generally apprehended and guarded against are engaging in the sale of intoxicating liquors, the intemperate use of alcoholic drinks, and the use of drugs to such an extent as permanently to impair the health.

Where such restrictions are inserted in the certificate under conditions that if violated by the member the certificate shall become null and void, and all rights and benefits which may have accrued on account of such certificate shall be forfeited, the provision is self-executing. Courts should construe the plain, unambiguous provisions of a benefit certificate the same as they would an agreement between other contracting parties, and give to it the effect intended by the parties. It is evident that it was the intention of both parties to the certificate that the forfeiture clause should have the effect its language plainly indicates; that if the member violated his contract against impairing his health by the continued excessive use of drugs or inducing delirium tremens by a continued excessive use of alcoholic drinks he should forfeit all benefits under the certificate. (Hogins v. Supreme Council, 76 Cal. 109, 18 P. 125, 9 Am. St. Rep. 173; Smith v. Knights of Father Mathew, 36 Mo.App. 184; Newman v. The Cov. Mut. Ins. Ass'n, 76 Iowa 56, 40 N.W. 87, 1 L. R. A. 659, 14 Am. St. Rep. 196; Supreme Council Royal League v. Moerschbaecher, 88 Ill.App. 89; Northwestern, etc., Assn. v. Bodurtha, Gdn., 23 Ind.App. 121, 53 N.E. 787, 77 Am. St. Rep. 414.)

In this connection it is well to observe that there is a notable distinction between certificates in which the member agrees that he will not engage in a designated prohibited business or will not impair his health by the use of drugs or intoxicating liquors and those where the provision is that if he does violate such conditions he shall forfeit all benefits under the certificate. In the first instance a forfeiture follows only after trial and expulsion, while in the latter the forfeiture follows a violation of the conditions. ( Independent Order of Foresters v. Zak, 136 Ill. 185, 26 N.E. 593, 29 Am. St. Rep. 318; Steinert v. United Brotherhood of Carpenters & Joiners, 91 Minn. 189, 97 N.W. 668; 2 Bacon, Ben. Soc. & Life Ins., 3d ed., § 326a.)

While the cases do not agree as to the violation of what conditions in the certificate will ipso facto forfeit all benefits, largely because of the different wordings of the provisions in different certificates, which have not in all cases been closely observed and distinguished, it may be said that if the certificate itself provides that the violation of some particular provision works a forfeiture the courts have generally held that upon the violation of such condition no recovery can be had.

A more difficult question is the claimed waiver on the part of the association to rely on the forfeiture in this case. The by-laws of the association provide that the local camp or executive council shall have original jurisdiction for the disciplining and expulsion of members for misconduct. Among the offenses for the commission of which a member may be tried and expelled by the local camp is the excessive use of intoxicating liquors. The by-laws provide:

"The consul shall preside at all meetings of the local camp and shall call all special meetings when necessary or legally requested so to do. He shall communicate the regular and semiannual passwords, appoint...