The Triple Tie Benefit Association v. Wood

• Decision Date: 07 November 1908
• Docket Number: 15,628
• Citation: 78 Kan. 812,98 P. 219
• Parties: THE TRIPLE TIE BENEFIT ASSOCIATION v. A. J. WOOD
• Court: Kansas Supreme Court

98 P. 219

78 Kan. 812

THE TRIPLE TIE BENEFIT ASSOCIATION v. A. J. WOOD

No. 15,628

Supreme Court of Kansas

November 7, 1908

Decided July, 1908.

Error from Bourbon district court; WALTER L. SIMONS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. FRATERNAL INSURANCE--Forfeiture--Waiver. A fraternal benefit association will not be permitted to assert a forfeiture because assessments were not paid at the time stated in the by-laws, where by the adoption of a custom or the course of its conduct it has led the insured members honestly to believe that the assessments may be paid and will be received at times other than those specified in the rules. (Foresters v. Hollis, 70 Kan. 71, 78 P. 160.)

2. PETITION--Waiver of Imperfect Allegations. The defendant joined in an issue of fact upon an imperfect allegation of the existence of such a custom, without moving for a more definite statement, and the question thus presented was fully tried upon the merits. Held, that the defendant can not justly complain of the insufficiency of the petition to present an issue in which it thus voluntarily joined.

F. B Dawes, and C. P. Rutherford, for plaintiff in error.

A. M. Keene, and E. C. Gates, for defendant in error.

OPINION

BENSON, J.:

The plaintiff, A. J. Wood, moves for a dismissal of this proceeding because the record was not filed in the court within sixty days from the rendition of the judgment. (Gen. Stat. 1901, § 3580.) The record, however, was filed and the proceedings begun within sixty days from the date of the order denying the motion for a new trial, and this brings here for review the questions presented to the district court upon such motion. (Osborne, Ex'r, v. Young, 28 Kan. 769; Bates v. Lyman, 35 Kan. 634, 12 P. 33.)

The defendant, a fraternal benefit association, issued a benefit certificate to Mrs. Wood on November 2, 1904. She died on July 12, 1906. Her surviving husband, the beneficiary, presented proper proofs and demanded payment as provided in the certificate, which was refused upon the ground that Mrs. Wood was not a member of the order in good standing at the date of her death; that she had been suspended on the last day of June for failure to pay an assessment for that month, under the operation of a by-law of the order, which was a part of her contract, as follows:

"If a member fails to make his regular monthly payments, local council dues and all assessments according to the laws of this association to the local secretary on or before twelve o'clock midnight of the last day of the month, then his certificate shall terminate at that hour and be null and void."

The assessment had been regularly made, but was not paid until the 11th day of July.

Mrs. Wood was a member of local council No. 78, at Fulton, which is subordinate to the supreme council. The principal officers of the local council are president, secretary and treasurer. On June 30, 1906, it had sixteen members in good standing holding beneficiary certificates. Regular meetings were held and regular reports were made to the supreme council. It is the duty of the local secretary, prescribed in the by-laws, to report to the local council each month the names of all members suspended for the preceding month for failure to make monthly payments, and to forward to the supreme secretary on or before the 10th day of each month the report of his council for the preceding month, and at the same time to make remittance of all assessments received for the past month. The by-laws provide that if the report and remittance are not received by the supreme secretary before the 15th of the month the local council and its members are to stand suspended, upon notice from the president, secretary and treasurer of the supreme council.

On the morning of July 11, 1906, Mrs. Wood was ill, and had been for three days, but was not considered to be in a dangerous condition. She asked her husband to go to the local secretary and pay her dues, which he did. He testified as follows:

"Ques. Now what was said between you and Doctor Elliott, and what was done there at that time? Ans. I said to Doctor Elliott, 'My wife is sick this morning and wanted me to come over and see if she had paid her assessment for this month, and, if not, to pay it.'

"Q. What did he say? A. He did not say anything, but simply got up and got the book and wrote me a receipt, and I stuck it in my pocket and went home.

"Q. Did you pay him any money? A. Forty cents."

"Q. Was there anything said about her coming and making a written application for reinstatement? A. Nothing of that kind.

"Q. Was there anything said about your paying more than the one payment that you had to pay at that time? A. Nothing.

"Q. Was there anything said between you and Doctor Elliott at that time about the by-laws requiring a health certificate? A. Nothing of the kind.

"Q. Did you make any statement to him at the time that you knew the by-laws required anything of that kind? A. No, sir."

(Cross-examination.)

"Q. You did know it though, did n't you? A. Know which?

"Q. That the by-laws required a health certificate when it was paid after the 5th of the month? [Objection that the question was immaterial and not proper cross-examination overruled.] Q. You did know that the by-laws really required a health certificate, did n't you? A. Well, that was my impression. I don't know that I knew it.

"Q. That the by-laws did require it? A. Yes, sir."

The local secretary testified that Mr. Wood inquired about his wife's June assessment--that Wood said his wife was sick, and asked for a receipt--and then continued as follows:

"Ques. What did you say to him, if anything? Ans. I told him that the by-laws required a health certificate and an application for reinstatement when the money was tendered after the 5th of the month.

"Q. What did he say? A. He said he understood the by-laws.

"Q. Did he still offer to pay? A. He made the payment.

"Q. And you gave him a receipt? A. I gave the receipt.

"Q. After that conversation? A. Yes, sir."

In the evening of July 11 Mrs. Wood became very sick, and died the next day at 11:30 A. M. The amount so paid, with other payments of assessments received about that time, was remitted July 12 to the supreme secretary with a report which gave the name of Mrs. Wood, with others, as having paid the June assessment, and stated that they were in good standing.

On July 18, 1906, the auditing committee of Fulton council examined the secretary's account showing the receipt of the assessments for June which had been paid in after the 5th day of July; among others was the following item: "July 11, Mrs. M. Wood, June, '06, 40 cts." This audit included four other assessments received on the same day and two received on July 9. All these items were audited and found correct by the committee.

It is claimed by the plaintiff that for a long time it had been the custom of the secretary of the local council to receive assessments at any time down to about the 12th of the next succeeding month after they were payable, without regard to the payments being made before or after the 5th of the month, and without any application or health certificate being required; and that thereby Mrs. Wood was induced to believe that such assessments would be received at any time before remittance was made to the supreme secretary. A summary of the by-laws material to the issues and the contentions of the respective parties was given to the jury in an instruction, as follows:

"(3) Said monthly payment of forty cents was due and payable on the first day of each and every month during the life of said Marinda Wood, but could be paid at any time up to midnight of the last day of the month. According to said certificate and constitution and bylaws, if any monthly payment be not paid on or before midnight on the last day of the month for which it was payable, then the insured would stand suspended without any action on the part of the defendant, and said certificate would, by such failure to pay, become null and void, unless such member should become reinstated as provided by the by-laws of the defendant company. Under the laws of the defendant a suspended member can be reinstated as follows: (a) By payment of the monthly payment the member...