128 Mo. App. 461 | Mo. Ct. App. | 1907
This is an action on a benefit certificate in a fraternal association and the defense is the insured had forfeited his membership by non-payment of dues prior to his death. The insured was Julius A. Bange. He was a member of Irving’ Council No. 2 of the defendant order, the Supreme Council Legion of Honor of Missouri. Minnie Bange was the wife of the insured and the beneficiary of the certificate, in Avhich the order obligated itself to pay her $2,-000 on due notice and proof of the death of her husband. Bange joined the order and took out the certificate April 5,1902. At that time he was a resident of the city of St. Louis and lived at No. 3546 Henrietta street. He died February 19, 1905, in Texas, while traveling there as a salesman for a Chicago business concern. Subsequently Bange moved from No. 3546 Henrietta street, St.- Louis, to 2637 Park avenue. This removal was in October, 1903, and plaintiff with his family, consisting
“Each member shall pay the amount due as his contribution to the relief fund Avithin thirty days from the date of such call, and any member failing to pay such contribution on or before the first meeting of his council after the expiration of said thirty days, shall stand suspended, from the order and from all benefits therefrom; provided, hoAvever, that any council may, by a majority vote of the members present-at said meeting, authorize the payment of a member’s contribution as a' loan, or as a gift, from its general or any fund, other than the relief fund, but such payment must be made Avithin the time herein specified.”
There is another by-laAV Avhich provided methods for the reinstatement of suspended members. Within thirty days from the date of suspension a member may file Avith the recorder of the council, a written application for reinstatement and pay to said recorder all 'dues and fines in arrears from the date of suspension and thereupon be reinstated. If the suspended member Avaits ninety days after his suspension before seeking reinstatement, he must file a Avritten application, accompanied by the certificate of some physician and pay up his contributions. In such instance he can only be re
“IRVING COUNCIL No. 2, L. OF H.
Meets Second and Fourth "Wednesdays Masonic Temple, Grand and Finley Avenues. M. A. Lindsiey, Recorder, 3696 Finney Ava
St. Louis, 18th August, 1904.
“Bro. J. R. Bange,
“Chicago, 111.
“Dear Sir: I am in receipt of your esteemed favor of recent date. Irving Council will not suspend you; it will pay your assessments for a reasonable length of time hoping that you may find employment and be able to reimburse them. Present my regards to your wife, who, I learn, is with you. After the receipt of your letter I called to see her to assure her Irving Council would treat you kindly and from her mother learned that she was with you.
“Fraternally,
“M. A. Lindsley,
“R.”
That letter was offered in evidence by the plaintiff, but excluded by the court. It was in an envelope addressed as follows:
“J. A. Bange, Esq., Chicago, Illinois, 2094 Wilcox Avenue. Return to 3696 Finney avenue. Post mark-St. Louis, August 18th, 1904, 2 p. m. Chicago postmark, August 19th, 1904, 9 a. m.”
1. This action is at law for the amount of the benefit certificate, and was brought on the theory that the deceased was a member of the order in good standing at the time of his death, the condition on which the defendant became liable to the beneficiary. The defense is that the deceased was not a member in good standing when he died, for the reason that he had been suspended from the order and all the benefits of his membership lost, in consequence of his failure to pay the assessments for July, August and September, as called for by Call No. 132. Calls Nos. 129, 130 and 131 had been issued on the first days of July, August and September, respectively, and failure to respond to those calls also is pleaded in the answer as ground of forfeiture. But at the trial the proof showed the council paid said calls for the insured, so that he only became subject to suspension when it refused to pay in his behalf call No'. 132. We must inquire to what extent the by-law providing for the suspension of a member for failure to pay contributions, is self-executing and on what conditions suspension will result from such failure. The by-law declared contributions must be paid within thirty days after notice of a call was sent, or the member delinquent would stand suspended. If nothing more had been said, default for that period by the member would ipso facto work a suspension. But the by-law contained a proviso that the council to which the member belonged might authorize his contribution to be paid as a loan or gift
Having ascertained to what extent the suspension by-law was self-executing, the next question is as to the conditions on which it effected the suspension of a member and the forfeiture of his insurance. Because the tendency of forfeitures is to defeat substantial rights on technical grounds, they are so unfavorably regarded in jurisprudence that courts of equity will not enforce them and will often relieve against them; and courts of law will not permit them to take effect under the provisions of a contract, unless the party asserting the forfeiture has complied, on his part, with all the conditions on which the contract makes the forfeiture depend. [McCollum v. Insurance Co., 61 Mo. App. 352.] Both the by-laws and the custom of the defendant contemplated that notice of a call for contribution should be mailed to a member, and his suspension should occur if he failed to pay within thirty days after said no
In view of Lindsiey’s testimony about sending the notice of the call to Park avenue, and the testimony of Mrs. Hobie that whatever mail came there for Bange after he had gone, was forwarded to him in Chicago, the inference might be drawn by the triers of the fact
2. It is contended the evidence shows beyond dispute Bange acquiesced in his suspension and no longer regarded himself as a member of the order, and that thereby his insurance was forfeited, even if the action of the council in treating hincas suspended, was invalid. The argument is that Bange was notified both by Lindsley, the recorder of Irving Council, and by James Smith, the supreme recorder of the order, that he had been suspended on November 9th for non-payment of his assessments, and it was incumbent on him, if he wished to enjoy further the privileges of the society, to do or say something expressive of dissatisfaction with the action of the council. If it was conclusively shown Bange had received those notices, and neither protested against his suspension, took steps to be reinstated, nor asserted his rights in any way, this argument would be sound. But the notices of suspension were sent to his Park avenue address, which was not then his regular address; and in this respect the same
But it is further argued that the by-law did not require notice of suspension to be sent to him. We hold otherwise, both on the interpretation of the by-law and the custom of the Order. Notice was always given to a suspended member of his suspension. Moreover, this was essential in order that he might avail himself of his privilege to seek reinstatement within thirty days after the date of the suspension. It is the doctrine of this court, as well as of the tribunals of other jurisdictions, that by remaining silent after he is notified of a void expulsion or suspension, a member of a fraternal society will forfeit his rights in the society, including his insurance. This is because the existence of such associations depends on the prompt payment of dues, and they would be destroyed if members were allowed, after a suspension technically invalid, to retain their insurance -without paying assessments. As has been pointed out in other opinions such a rule would put a suspended member on a better footing than an active one, because the former would continue to enjoy his insurance without paying for it; whereas the latter would pay. Bange died in March, 1905, four or five months after his suspension and seven months after he had paid any dues. If he received notice of the action of the council and did nothing in the premises, nor treated himself as a member of the order and bound to contribute to its burdens no recovery can be had on his benefit certificate. [Glardon v. Supreme Lodge, 50 Mo. App. 45; Miller v. Grand Lodge, 72 Mo. App. 499; Supreme Lodge v. Wilson, 66 Fed. 785.]