Whitehorn v. Arcanum
| Decision Date | 20 November 1936 |
| Docket Number | 29724 |
| Citation | 269 N.W. 821,131 Neb. 713 |
| Parties | JENNIE WHITEHORN, APPELLANT, v. ROYAL ARCANUM, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. In an action against a fraternal benefit association for the amount of a benefit certificate, where the issue is as to the good standing of the member at the time of his death, a statement made by the deceased prior to his death, tending to show his understanding of his standing in the association, is admissible in evidence in favor of the association.
2. The by-laws of a fraternal benefit association providing for the payment of assessments each month by a member and for suspension if the assessment is not paid as required are self-executing.
3. " A suspended member of a fraternal benefit association can only be reinstated in strict conformity to the by-laws in force at the time, and has no rights under his certificate until so reinstated." Fairbanks v. Sovereign Camp, W. O. W., 130 Neb. 654, 266 N.W. 60.
4. If assessments are duly paid by the local council or lodge for a member of a fraternal benefit association as a loan, at his request, the fact that the member does not return such loan to the lodge or its secretary, as agreed, will not establish a custom to extend time of payment on the part of the association.
5. If the local council of a fraternal benefit association advances assessments for a member and afterwards is reimbursed by him, the presumption, in absence of evidence, is that it was at the request of the member and as a loan to him to enable him to comply with his contract.
6. " Under such circumstances, the association cannot be held to have waived the right to declare a forfeiture when so provided in the contract, if payments are not forwarded to the association within the time specified therein." Chandler v. Royal Highlanders, 101 Neb. 223, 162 N.W. 642.
Appeal from District Court, Douglas County; Redick, Judge.
Action by Jennie Whitehorn against the Royal Arcanum. From a judgment for defendant on directed verdict, plaintiff appeals.
Affirmed.
Fradenburg, Webb, Beber, Klutznick & Kelley, for appellant.
Olaf W. Osnes, contra.
Heard before GOSS, C. J., GOOD, EBERLY, DAY and CARTER, JJ., and MUNDAY, District Judge.
This is an action upon a fraternal benefit certificate, in which plaintiff is named as beneficiary. Defendant denied liability, alleging that plaintiff's husband, who had been a member of the defendant order, had been suspended and had ceased to be a member for several months prior to his death. At the conclusion of all the evidence, the trial court, on motion of defendant, directed a verdict for it. Plaintiff has appealed.
The Royal Arcanum is a fraternal benefit association, organized under the laws of Massachusetts, with its headquarters in Boston. The supreme governing body of the order is known as the supreme council. The constitution and laws promulgated by the supreme council provide for grand lodges or councils and for local councils. One of these local councils located at Omaha, Nebraska, is known as Union Pacific Council No. 1069. William B. Whitehorn, deceased husband of plaintiff, became a member of this local council, and a benefit certificate was issued to him in which his wife, the plaintiff, was named as beneficiary. The face amount of the certificate was $ 3,000. The form of certificate issued to Whitehorn provided for monthly payments or assessments. There were also quarterly dues payable to the local council. For some years prior to his death the monthly assessment was $ 4.86. Whitehorn paid his assessments up to and including January, 1933, but failed to pay his February assessment. This was advanced and paid for him by the local council. He did not reimburse the local council for this advancement and did not pay the March assessment, nor did the local council advance it for him, and on March 31, 1933, Mr. Whitehorn was suspended from membership in the order and was never reinstated and never made application for reinstatement. The evidence shows that no assessments were levied against him after March, 1933, and that no payments were made therefor.
It appears that on the 17th day of August, 1933, Mr. Whitehorn left a check for $ 37.02, payable to the defendant, with some employee of the Elks Club in Omaha, and that the collector for the local council received this check and retained it until after Mr. Whitehorn's death. Plaintiff contends that there had been a custom to permit the payment of assessments at irregular intervals and after the time when they were actually due, and that Mr. Whitehorn did not know of the claimed suspension and relied on the custom of defendant in receiving payments long after they were due and at irregular periods, and that defendant, therefore, waived the right to insist upon strict enforcement of the rule for suspension.
It is conceded that the rules of the order provide for the payment of monthly assessments during the month for which they are made, and that if, at 10 o'clock p. m. on the last day of the month, the payment is not made, then the member is automatically suspended. It is also provided that after the member has been suspended he may be reinstated by making application therefor, paying all arrearages, dues and assessments, and, under certain conditions, is required to pass a satisfactory medical examination. The by-laws provide that a local council may, if it so elects, pay the assessments of a member, or advance them for him, but such action is not required.
The evidence shows that the payments of assessments made by Mr Whitehorn had been at irregular intervals, and that sometimes he would be two or three or four, and possibly more, months in arrears. The evidence also shows that the local council advanced his assessments; that the amount payable to the supreme body was remitted each and every month for him; that he was kept in good standing, and that he would reimburse the local council from time to time for the payments which it had advanced. It appears that the local council had a general fund, in addition to the assessments which were required for the insurance feature, and it was from this fund that advances were made for members. Inferentially, it appears that early in 1933 the local council was running low in its general fund; Whitehorn did not pay his February assessment, and the local council advanced it for him. He had not reimbursed the local council for the advancement so made. He failed to pay his March assessment, and the local council did not advance it for him. The record clearly shows, beyond question, that Whitehorn...
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