66 Neb. 389 | Neb. | 1902
This is a suit upon a benefit certificate issued by the defendant in error to one Obarles W. Adams, September 20,
“Lincoln, Nebr.,.189..
“To John Oarnaby, Omaha, Nebr.
“Friend John : I enclose $5 to apply on account. I don’t know how I stand with the lodge; have been knocked out for some weeks and just getting around again. Please address me care Lincoln Hotel, room 326, Lincoln, Nebr.
“Yours truly,
C. W. Adams.”
This letter was postmarked at Lincoln, April 18, 1899, and was received on April 19, 1899. Mr. Carnaby says that he received the letter, and replied, as nearly as he can remember, in the following terms:
“Brother Adams: I received your letter with the enclosed Pacific Express, order for $5. Enclosed you will find receipt for same. You will also find health certificate which you must properly sign and forward on to me as you can not be reinstated until I receive the same.”
He says that he included with this letter a blank certificate of health in the required form, which is as follows:
“To the Or mid Lodge of the Ancient Order of United Workmen:
“I, -to whom Beneficiary Certificate No. - was issued in Lodge No.of the Ancient Order of United Workmen, of the state of Nebraska, having been*391 suspended from all rights, benefits and privileges of the order, and having forfeited all my rights as a member of the order, by reason of non-payment of assessment No. which suspension and forfeiture occurred within a period of three months prior to the date of this certificate, and desiring to be reinstated in said order, as provided by the laws thereof, do hereby certify that I am, at this date, in sound bodily health, and that I agree that the reinstatement of myself as a member of the order, based upon the certificate, shall be valid and binding only upon the condition that the statement herein contained, relating to my bodily health, is true in every respect upon the day and date recorded on this certificate.
“Attest:.”
He wrote a receipt for the amount and inclosed the letter, health certificate and-receipt, in an envelope addressed to C. W. Adams, Lincoln, Nebraska, and deposited the envelope, with postage prepaid, in the post office at Omaha on the morning of April 21. No reply was ever received and no health certificate ever returned. The money order was held, pending a reply, and appears with the evidence in the case. On that day O. W. Adams died suddenly of apoplexy. The beneficiary named in his certificate was his wife. She, however, had died in 1898. Plaintiffs were his sons, and by the rules of the order were entitled to receive the benefit if he had been in good standing. Ezra O. Adams found the benefit certificate among his father’s papers, and was appointed guardian for his brother, and says he notified the subordinate lodge of his father’s death and never learned of any objections to the sufficiency of such notice. In 1897 Mr. Adams seems to have been suspended for more than three months, and was reinstated on an application and medical examination. In this second application he expressly agreed to comply with the regulations and requirements of the supreme lodge of the order as then existing. The laws of the order adopted in 1897, as testified to by the grand recorder, Barber, provided as follows:
*392 “Sec. 4. There' shall be due as a regular assessment, without notice, on the first day of each month, from each workmen degree member in good standing of this jurisdiction, the sum of one dollar, payable to the financier of his lodge, on or before the 28th day of the month, Provided, that if there is no assessment for that month, or if there be two or more assessment's for the month, notice thereof shall be published in the official organ of the order, or in such other manner as the grand lodge may prescribe.”
Section 5 of article 7 of defendant’s constitution provided that each member who had not paid his assessment on or before the 28th of the same month should, by the fact of such non-payment, stand suspended, and no action on the part of the lodge or its officers would be required to effect such suspension; and section 6 of the same article provided that after such suspension, a certificate might be renewed within three months by the payment of all assessments during the time of suspension, but after thirty days’ delinquency a certificate of good health must be furnished upon the blank required by the order; that the renewal should be reported to the lodge at its next meeting, and a vote taken, and if the majority was in favor of reinstatement, the member should be reinstated, and when all these conditions had been complied with, the certificate should be renewed in full force, and not before. It was further provided that a member should have no claim upon the beneficiary fund during suspension.
Ezra C. Adams testifies to receiving from the mail, on the day of his father’s death, a receipt for the $5, but does not know whether the letter or blank certificate accompanied it or not. Notice had been given to produce the letter and health certificate, and no objection is now made that the evidence as to them is incompetent. The plaintiffs tendered proof that it was Mr. Adams’s custom to pay his dues from time to time in the lump sum in the mariner in which they were transmitted at this time, but the evidence was rejected. There seems to have been both talk and correspondence between Ezra C. Adams, the older son, and the
It is complained that there is no competent evidence to show that there was an assessment due on tbe 1st day of February, 1899, but there seems to be no foundation for this objection. Tbe proof as to tbe adoption of tbe amendment to tbe constitution establishing a regular assessment for each month seems ample, and we find no question in this case except as to a waiver of tbe suspension. Tbe waiver is claimed, first, on tbe ground of accepting tbe money,'but tbe money was only received conditionally, tbe
It is claimed that the fact that after the denial of liability, and after the tender back of the money order, one of the members of the grand lodge finance committee expressed a wish that the plaintiff’s attorney should present
It is recommended that the judgment of the district' court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.