Wuerfler v. Trs. of Grand Grove of Wis. Order of Druids

• Citation: 92 N.W. 433,116 Wis. 19
• Parties: WUERFLER v. TRUSTEES OF GRAND GROVE OF WISCONSIN ORDER OF DRUIDS.
• Decision Date: 28 November 1902
• Court: Wisconsin Supreme Court

116 Wis. 19

92 N.W. 433

WUERFLER

v.TRUSTEES OF GRAND GROVE OF WISCONSIN ORDER OF DRUIDS.

Supreme Court of Wisconsin.

Nov. 28, 1902.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by Johanna Maria Charlotte Wuerfler against the trustees of Grand Grove of Wisconsin Order of Druids. Judgment for defendants, and plaintiff appeals. Reversed.

Action to recover on a benefit certificate issued by defendant order to Friedrich Wuerfler, plaintiff being his widow. By the complaint it was alleged, in addition to stating plaintiff's right to maintain the suit if the certificate was in force at Wuerfler's death, that defendant was a society recognized by section 2002, Rev. St. 1898, having a grand grove or lodge with subordinate groves or lodges; that it furnished insurance to its members from about 1894 to 1897 in the sum of $1,000 each, payable 90 days after proof of death, such member being in good standing in the order at the time of his decease; that Wuerfler, for 20 years before he died, which was March 23, 1897, was a member of such order in good standing, and belonged to Walhalla Grove, No. 2; that till about 1895 certificates of membership in the order were not issued; that about that time the custom of issuing certificates commenced, and one was issued to Wuerfler, a copy of which is attached to the complaint; that it provided, upon the death of the member in good standing, he having complied with all the laws, rules and regulations of the order and of the benefit fund, for payment of $1,000 to his widow; that Wuerfler was a member of the order in good standing when he died; that due proof of death was made and all the conditions of the certificate complied with, requisite to entitle plaintiff to the death benefits secured by her husband's membership; but that the order has refused to allow her to participate in the benefit fund of the order, though the time for payment upon the certificate has expired.

Defendant by its answer put in issue the allegations of the complaint as to Wuerfler's being a member of the order in good standing when he died and alleged that, by the constitution of the order of 1870, it was empowered to insure members for $500 each, payable to the widow or next of kin; that the order had power to amend its constitution, but did not exercise it till 1896; that it then did so, the change taking effect prior to February 4, 1897; that thereby each member of one class was required to pay an assessment of $1 upon the death of any member, and others were required to pay into the benefit fund at such times according to a schedule arranged with respect to ages; that the death benefits in each instance, by the change, were limited to the amount actually paid into the fund on account thereof, not exceeding $1,000, instead of a fixed sum of $500 according to the constitution prior thereto, or $1,000 according to an attempted change in such original constitution made in 1894; that by the constitution as amended, the same as before, if a member failed to pay his assessment by the end of the month in which it was made, such failure ipso facto terminated his membership; that Wuerfler made such a default as to three assessments in February, 1897, by reason whereof his membership ceased.

Evidence was produced establishing plaintiff's right to recover either the full amount claimed, being $1,000 and interest, according to the terms of the certificate of membership, or a sum between $462.60 and $511.07 if Wuerfler was a member of the order in good standing at the time of his death according to the amended constitution. There was evidence that the original plan of the order had no insurance feature; that it was amended in 1870 by adding such feature and limiting the amount of the death benefits incident to each membership to $600; that the limit was changed in 1873 to $500; that there was an attempted change in 1894 increasing the limit to a fixed sum of $1,000, under which change the order worked until the change was made in 1896; that during such time the certificate in question was issued, and Wuerfler paid assessments to the order in accordance with such attempted change for some two years, and all other members did the same, and a large amount was paid out of the benefit fund so accumulated on account of matured memberships; that a change was made in the constitution in 1896 entirely doing away with all existing contracts and providing that all members of the order on January 1, 1897, should, upon the death of a member, pay into the death benefit fund $1, and that all other members on such an occasion should pay into such fund according to a schedule of rates arranged with respect to the ages of the members; that pursuant to such change February 4, 1897, all outstanding certificates and insurance obligations were declared at an end and the insurance feature of the order on the new basis; that prior thereto three assessments were made upon Wuerfler's membership, of 80 cents each, payable before the end of the month of February, 1897; that he refused to surrender his certificate when requested to do so by an officer of the company, insisting upon his rights thereunder; that for nonpayment of such assessments and lodge dues of 50 cents, his name was stricken from the rolls of the order in March, 1897; that the constitution of the order provided a particular method of amending it, which was not complied with in the attempted change of 1894; that the insurance certificate issued provided that the contract stated therein was subject to all existing by-laws, rules and regulations of the order, and all that might be made; that prior to Wuerfler's death he was sick for a considerable period of time, during which he was entitled to weekly pecuniary benefits from the order, which were regularly paid up to October 1, 1896; that thereafter he was entitled to $1 per week till he died, unless he waived the same, which defendant claimed was done and attempted to maintain the same by evidence. There was conflicting evidence as to whether Wuerfler directed his sick benefits of $1 per week from October 1, 1896, till he died, to be retained by the order and applied upon any charges there might be upon his membership for assessments on account of the benefit fund and for lodge dues. Evidence of plaintiff in regard to conversations heard by her between her husband and the treasurer of the lodge, to the effect that such benefits should be so retained and applied, and evidence that she, as agent of her husband, instructed such treasurer to so retain and apply such benefits, was rejected.

At the conclusion of the evidence plaintiff moved the court for a directed verdict, which was refused. The jury found specially that Wuerfler did not direct the treasurer of...