72 P. 239 | Kan. | 1903
The opinion of the court was delivered by
On February 28, 1898, the Ancient Order of the Pyramids, a fraternal insurance association, issued a beneficiary certificate to Elmer F. Drake by the terms of which, among other things, it agreed that in the event of his death it would, upon certain conditions, pay $2000 to Susie Drake and O. E. Morgan. Drake died July 23, 1898. The beneficiaries named in the certificate brought an action against the association on it, and upon a jury trial recovered a judgment for $2000 and interest, to reverse which the defendant brings this proceeding in error. The defenses were that membership had been forfeited by non-payment of assessments ; that proof of death had not been properly furnished ; and that the claim had not been submitted to the executive board of the association for determination prior to the bringing of the action.
The principal controversy in the case is whether Drake had paid all the assessments against him up to the time of his death, but this feature of the matter involves mainly a question of fact, and while the
It is contended that plaintiffs failed to furnish proof of death as required by the laws of the order, and were, therefore, precluded from recovery. The laws thus invoked read as follows :
1' association11*1 ‘■‘Upon the death of a member in good standing holding a beneficiary certificate, it shall be the duty of the scribe of the council of which the deceased was a member to notify the royal scribe officially. The royal scribe will then send the proper blanks upon which to make proof of death, which shall be filled out by the attending physician and undertaker, certified before a legal officer, with his.official seal attached thereto, attested by the officex’s of the council, under the council's seal, and returned to the royal scx-ibe, whose duty it shall be to forward such proof of death with the original application and all information pertaining thereto to the royal medical director ; the royal medical director shall promptly pass on such proof of death and return it to the royal scribe. If approved by the royal medical director, the royal scribe shall file such proof in his office and submit the same, to the executive board for their action at their next meeting. It shall be the duty of said board to examine the claim, and if approved, to order payment thereof.
“If the required px’oofs of death are not made by the bexxeficiaries or beneficiax*y xxamed in the certificate according to the laws of tlxe order and the provisions of the certificate, and upon a blank prescribed by the executive board and filed with the royal scxibe within nine calexxdar months after the death, all claims whatsoever on account of such death and certificate shall be void."
The evidence shows that plaintiffs made strenuous, but unsuccessful, efforts to procure blanks upon which to make proof of death. Demands were made upon the scribe and upon the royal scribe for such blanks
It is further contended that the plaintiffs could not recover because their claim was not submitted to the executive board of the association prior to the bringing of the action. This is only another form of the objection just considered, the particular laws of the order relied upon by plaintiff in error being those already quoted. It will be seen from a careful examination' of them that they do not, in terms, impose any duty upon the claimant with regal'd to the presentation and establishment of his claim. The first step in the proceedings devolves upon the scribe, or local secretary. He is to notify the royal scribe, or general secretary, of a death. The royal scribe is then to send the proper blanks (it is not stated to whom) and they are to be filled out by the attending physician and undertaker, attested by the officers of the council, and returned (it is not stated by whom) to the royal scribe, who is to forward them to the medical director, who is to pass on them and return them to the royal scribe, who is to file them in his
“ Every member of the beneficial department of the order shall on or before the 5th day of each and every calendar month pay to the scribe of his council his monthly assessment. . . . It is hereby declared to be the invariable law of the order, by which all members shall be bound, that any failure of any scribe of a subordinate council to collect, receipt for and remit all assessments shall be a neglect of duty charge*543 able upon the members of such subordinate council, and shall not directly or indirectly bind the order in any manner whetever.”
It is to be noted, however, that by-law No. 13, in defining the duties of the scribe, provides :
“He shall keep a full and correct account between the council and its members, receive all moneys for the council, and pay the same to the treasurer before the close of each meeting, taking his receipt therefor.”
It, therefore, appears that, if assessments are classed as moneys received by the scribe for the council, it is not his duty to remit them to the royal temple, but to pay them to the local treasurer. Our attention is not called to any by-law, and upon an examination we find none, that requires the scribe to make any remittances direct to the general officers. If the parts of the bylaws quoted are inconsistent with each-other, the insured should be given the benefit of the construction most favorable to him. (National Reserve Association v. Mondrowski, 20 Tex. Civ. App. 322, 49 S. W. 919.)
But apart from this consideration, while ordinarily it is competent for the association to make rules that shall be binding upon its members, and while courts have no control over the policy of such rules, yet this power is subject to the limitation that the rules must be reasonable. The association cannot change the character of the relation of a policy-holder to an officer by giving a name to it, nor can it alter the rights of the parties which under the law result from such relation. Under the by-laws the way, and the only way, by which the member could maintain his standing was by payment of his assessments to the scribe. He had no choice. He was not permitted to remit didirectly to the head office, unless, indeed, the council to which he belonged was under suspension. In view
A final contention that appears to be well founded is that there was error in the amount recovered. The by-laws provide that where the insured dies before the expectancy of life designated upon his certificate the beneficiary shall pay into the reserve fund, out of the proceeds of the certificate, a sum equal to the amount the deceased member would have paid into the reserve fund had he lived the full period of such expectancy. In the present case this • amount would be $74.64, and interest upon it up to the time of judgment would increase it to substantially $86.20. Defendants in error do not deny that this deduction should have been allowed if the demand for it had been made in a timely and proper manner. But they contend that it should have been pleaded as a counterclaim, whereas, it was never called to the attention of the trial court in any way. There was, we think, no necessity for the defendant to refer to this matter in its pleading. All the by-laws were made a part of the petition, and the certificate itself makes the payment of assessments during, the full period of life-expectancy a condition precedent to recovery, subject to the conditions stated in the by-laws. It is true the by-laws speak of this amount as one required to be paid by the beneficiary out of the proceeds of the certificate, but we think the entire contract, the certificate and the by-laws being taken together, justifies
The judgment of the trial court will be reduced to $2223.80, and, as so reduced, affirmed. The costs in this court will be divided.