Ulman v. Supreme Commandery of United Order of the Golden Cross of the World

• Decision Date: 01 March 1915
• Citation: 107 N.E. 960,220 Mass. 422
• Parties: ULMAN et al. v. SUPREME COMMANDERY OF UNITED ORDER OF THE GOLDEN CROSS OF THE WORLD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

220 Mass. 422

107 N.E. 960

ULMAN et al.

v.SUPREME COMMANDERY OF UNITED ORDER OF THE GOLDEN CROSS OF THE WORLD.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1915.

Exceptions from Superior Court, Suffolk County; Robert F. Raymond, Judge.

Action by William T. Ulman, as administrator, and others, against the Supreme Commandery of the United Order of the Golden Cross of the World. There was a verdict for plaintiffs, and defendant excepted. Exceptions sustained, and judgment rendered for defendant.

Hayes, Williams, Baker & Hersey, of Boston (Henry M. Williams and Arthur U. Hersey, both of Boston, of counsel), for plaintiffs.

Wilbur H. Powers and Powers, Folsom & Powers, all of Boston, for defendant.

BRALEY, J.

The plaintiffs who are the beneficiaries named in a benefit certificate issued to the intestate by the Home Circle, a fraternal beneficiary association organized under the laws of this commonwealth seek to recover the amount named in the certificate from the defendant, a corporation of like character chartered by the state of Tennessee. The grounds of recovery as stated in the first and second counts of the declaration are, that by the consolidation between the respective corporations the defendant assumed and agreed to pay the amount, or that having accepted and treated the intestate until his death as if he were a member of its organization it is liable to the same extent as if it had issued the certificate. We are of opinion that the action cannot be maintained on either ground. While the defendant admits that all assessments were paid and due notice of death given, it has pleaded and relies upon a by-law of the Home Circle in force when the intestate joined, that:

‘No action at law or in equity in any court shall be brought or maintained in any cause or claim arising out of any membership, benefit certificate, or death of a member unless such action is brought within one year from the time when such right of action accrued.’

But if at the date of the writ this period had long since expired, the plaintiffs contend that the by-law forms no part of the contract, or if originally applicable it has been waived. The certificate, however, recites that it is issued and accepted upon condition that the member complies in the future with the laws, rules and regulations now governing the fund, or that hereafter may be enacted by the supreme council to govern the fund, and the death benefit is expressly declared to be payable only in accordance with, and under the provisions of, the laws governing the fund. The by-law is not unreasonable. It protects the fund from which death benefits are to be paid from stale claims which otherwise might be so delayed in presentation that satisfactory evidence as to their validity might be lost, as well as enables the order to meet death claims and to levy assessments promptly. Nor has the by-law been waived. The only excuse for the delay is explicitly stated to have been the desire on the part of the plaintiffs to ascertain the outcome of the litigation in Timberlake v. Order of the Golden Cross, reported in 208 Mass. 411, 94 N. E. 685,36 L. R. A. (N. S.) 597, before bringing suit. It does not appear that the defendant assented to the postponement or in any way induced the plaintiffs to forbear pressing their claim in the courts. The essential elements from which the intentional relinquishment by the defendant of the right to rely on the by-law could be found are lacking, Schwarz v. Boston, 151 Mass. 226, 24 N. E. 41;Rand v. Hanson, 154 Mass. 87, 28 N. E. 6,12 L. R. A. 574, 26 Am. St. Rep. 210;Metropolitan Coal Co. v. Boutell Transportation & Towing Co., 185 Mass. 391, 70 N. E. 421;Paul v. Fidelity & Casualty Co., 186 Mass. 413, 71 N. E. 801,104 Am. St. Rep. 594;Solari v. Italian Society of Columbus, 211 Mass. 382, 97 N. E. 765. It being settled that the plaintiffs are bound by the terms of the contract which includes the by-law the second ruling requested should have been given. Eliot Nat. Bank v. Beal, 141 Mass. 566, 567, 568, 6 N. E. 742;Reynolds v. Royal Arcanum, 192 Mass. 150, 155, 78 N. E....