22 Mo. App. 127 | Mo. Ct. App. | 1886
delivered the opinion of the court.
This action is brought by the widow of Fred. Borgraefe, deceased, to recover the sum of $1,000, claimed to be due under the terms of a certificate of membership of her deceased husband, Fred. Borgraefe, in Ada lodge, number 883, of the organization known as the Knights and Ladies of Honor. The answer is: (1) A general denial. (2) An averment that prior to his death, the deceased voluntarily withdrew from Ada lodge, whereby he forfeited his rights under the benefit certificate. (3) That he did not comply with the rules, laws, and requirements of the order, in that he failed to paya certain-assessment, described as assessment number 138, class A, whereby he had, prior to- his death, become suspended by operation of the laws of the order, and that he had never been reinstated, but had died while so suspended. The reply contains a general denial of the new matter set up in the answer; sets out a substantially correct copy of section three, of law two, of the supreme lodge (the
A trial before a jury resulted in a verdict and judgment for the plaintiff for the amount claimed with interest.
At the trial the plaintiff offered in evidence the benefit certificate held by her deceased husband, the material portion of which is as follows : £ £ This certificate, issued by the supreme lodge, Knights and Ladies of Honor, witnesseth, that Fred. Borgraefe, a member of Ada lodge, number 883 of said order, located at St. Louis, is entitled to all the rights and privileges of membership in the order of Knights and Ladies of Honor, and to participate in the relief fund of the order to the amount of $1,000, which sum shall, at his death, be paid to his wife, Maria Borgraefe. This certificate is issued upon the expressed condition that said F. Borgraefe shall, in every particular, while a member of said order, comply with all the laws, rules, and requirements thereof.”
The plaintiff proved that the deceased had died on December 13, 1884; that she had notified the lodge of his death, demanded payment of the certificate, and that her demand had been refused.
The facts relied on by the defendant were developed, partly on cross-examination of the plaintiff, partly by witnesses who testified for the defendant, and partly by instruments of writing put in evidence by the defendant. This evidence tended to show that the deceased was a member in good standing of Ada lodge down to the twelfth of September, 1884, on which day the plaintiff
“ St. Louis, October 9, 1884. ■
“ Sir Knights and Ladies of Ada Lodge, No. 883:
“As I have already had so much work and annoyance with the lodge, and now have other use for my money than for the required baptismal certificate, I would, therefore, hereby inform you that I no longer regard myself as a member of the order, wherefore I now ■demand return of the papers belonging to me, as soon as possible.”
That at the meeting at which the above letter waS presented, October 16, it was resolved not to grant the
The defendant offered to prove the reason why the lodge required the deceased to produce his baptismal certificate, but this the court refused to permit. We do not see any error in this ruling. We do not see any relevancy in the evidence sought to be 'adduced. It is evident that the deceased and the lodge, or the ruling majority in the lodge, had gotten into a quarrel, and whether the lodge were acting justly or- unjustly with him does not seem to be an important inquiry in the case, as this is not a proceeding by a member of a society who is unjustly dealt with to require the society to extend to him any right therein, to which he might, under its laws and regulations, be entitled. The real question in issue was whether Borgraefe was a member of the society at the time of his death.
The evidence given for the defendant tended to show that, whenever the fund in the treasury of the defendant, the supreme lodge, to the credit of class A, in which class the deceased belonged, was less than $1,000, the amount sufficient to pay a single benefit, it was the duty of the secretary of the defendant, under the laws of the order, to make a call upon the subordinate lodges for contributions to replenish this fund, and that, in pursuance of this duty, he issued a call for the assessment known as assessment number 138, class A. This statement will dispose of the contention of the plaintiff that there is no evidence in the record tending to show that this assessment was regularly made, and hence that the non-payment of it can not, under any circumstances, be made the ground of refusing to pay the death benefit for which this action is brought. The objeetion is clearly not well taken, and on this point this record presents no resemblance to the record in the case of Agnew v. Grand Lodge (17 Mo. App. 254).
The defendant also gave evidence tending to show
“Hall of Ada Lodge, No. 883, )
Louis, Mo., November 1, 1884. )
“ To Brother F. Borgraefe :
“You are hereby notified that assessment No. 138, class A, dated October 1, 1884, on the death of-, is past due. In accordance with the law, I have been instructed to issue this second notice. If the above assessment, and added fee of ten cents, is not paid within fifteen days from this date, you will stand suspended from the class of which the assessment issued, without further notice. If the assessment is issued upon the members of class A, and it is not paid, as above, you will stand suspended from the lodge and order without further notice.
“Fred Mann, .
“ Financial Secretary.
‘ ‘ Amount of assessment, 85 cents; added fee, 10 cents; total, 95 cents.”
The laws and rules of the order governing the supreme, and also the subordinate, lodges, were put in evidence at very considerable length. Many of them are irrelevant, to this inquiry, and, therefore, confusing. We take it to have been conceded at the trial, and such was the fact, that under these laws and regulations the deceased was-bound to pay assessment number 138, class A, in order to preserve his membership in the order, and entitle the beneficiary, designated by him, to the benefits stipulated for in his certificate of membership in case of his death. It then becomes material to inquire no further than what the rules of the order were touching the suspension of
“Section 8. On the death of a member, the secretary of the lodge shall immediately forward the supreme secretary, supreme medical examiner, and grand secretary (if within a grand jurisdiction), a notice of such death ; such notice must state the name and age, the date of admission to the relief fund, the date of death, and the amount paid into the relief fund, and that they were entitled to the benefits the order pays. After paying said benefit, if the sum of one thousand dollars is left in the supreme treasury to the credit of this class, no assessment will be made; but when less than'one thousand dollars is left in the supreme treasury, after paying a benefit, a call will be made on each lodge for the money, in the treasury, of each member of this class, who was admitted to the relief fund on and prior to the date of death of the deceased member, and each member liable to assessment shall be notified of said death by the secretary, under seal of the lodge, and assessed to replace in the treasury the amount forwarded to the supreme treasurer, and such notice shall be official and sufficient notice to every member of the lodge. Each member shall pay,the amount due on the notice of the secretary within thirty days from the date of such notice; if at the expiration of that time the member ■ has failed to pay such assessments, the financial secretary shall issue a second notice, with an added fee of ten cents, again calling for its payment and the fee within fifteen days. If such demand is not complied with, the member shall stand suspended from the lodge without further notice. All added fees shall become a part of the general fund of the lodge.”
“Section 5. The notices required to be given under sections three and four of this law, may be given through the postoffice, by depositing the same, properly enclosed,*136 in a post-paid wrapper, or envelope, in the postoffice of the party giving it, directed to the party to be notified, at his or her last or usual place of residence or business such notices may also be given on postal cards, such cards to be deposited and directed as hereinafter mentioned.”
“LawIY., Section 1. Of members — Any member who may become three months in arrears for dues to her lodge shall not be entitled to vote, hold office, nor be entitled to benefits, and when six months in arrears for dues, or fails to comply with section three, law two, shall be suspended from the lodge. Suspension from a subordinate lodge deprives a member from all rights and privileges in both grand and supreme lodges, as well as in subordinate lodges.”
The rules governing the reinstatement of suspended members are prescribed in what is known as law five, section one, which reads as follow:
‘ ‘ Section 1. Of members — Members of the order suspended for non-payment of dues, fines, or assessments, and delinquent notice fees, applying to be reinstated, must pay the full amount they are in arrears for dues, fines, or assessments, and delinquent notice fees, charged at date of suspension. They shall also pay all assessments upon deaths occurring prior to suspension.”
A suspended member shall be reinstated by the financial secretary without medical re-examination or ballot, provided payment of all assessments and delinquent notice fees, due at time of suspension, be made within thirty days after suspension, which act of reinstatement shall be reported by the financial secretary at the first session of the lodge after such reinstation.
If thirty days or more have elapsed since suspension, the suspended member shall make application for reinstatement upon the form designated as “application for reinstatement,” and a medical certificate of the form prescribed, must be obtained from the subordinate medical examiner, which certificate shall be submitted to the
Another rule of the order, known as law sixteen, contains this important provision:
“The subordinate lodge constitution, as adopted, and from time to time amended by the supreme lodge, shall be the constitution of all subordinate lodges, and no grand lodge shall have the power to alter or amend the same.”
Article eight, of what is known as the “ constitution governing subordinate lodges,” contains this provision regarding “ sick benefits ” :
“ Members in good standing, and notin arrears for dues or fines, having six months previously obtained the ■degree of protection, who may become disabled by sickness or other disability from following their usual business, or some other occupation, may be entitled to receive from the funds of the lodge such weekly benefits as the lodge may in its by-laws prescribe,- provided such sickness or disability is not parturition or childbirth, or originate from intemperance, vicious, or other immoral conduct or practice; and the lodge may, by by-law, enact that no benefit may be paid for the first week’s sickness or disability. Members who may be taken sick, or become disabled while in arrears to the lodge for dues or fines, can not, by paying the same, become beneficial, nor receive benefits during such sickness or disability. Members, while sick or disabled, who become in arrears for dues or assessments, a subordinate lodge may, out of its general fund, pay the same, for the purpose of preventing the suspension of delinquent members. Members shall not be entitled to benefits while under charges under*138 the penal provisions of the law, but if, after due trial,, they have been acquitted or exonerated, they shall be-entitled to receive weekly benefits if otherwise entitled thereto.”
It is perceived that, according to this article, a member in good standing who is taken sick at any time when he is in arrears for dues, “maybe entitled to receive from the funds of the lodge such weekly benefits as the lodge may, in its by-laws, prescribe,” etc. But there is no question here as to the payment of what are termed, “ sick benefits,” which are understood to be weekly allowances paid by the lodge- out of its general fund to a member during sickness. It is also perceived that the above-article contains ’ this provision : £ £ Members, while sick or disabled, who become in arrears for dues or assessments, a subordinate lodge may, out of its general fund, pay the same, for the purpose of preventing the suspension of delinquent members.” This we understand to be-the clause of the laws of the order on which the claim set up in the plaintiff’s replication is based — that Ada lodge, under authority given it by the laws of the order, had adopted a by-law whereby the lodge had agreed to pay to the supreme lodge the dues of any member to the relief fund, who was sick or disabled, to prevent suspension for default; that, after the adoption of said by-law, the deceased was taken sick and was hence entitled to the benefit thereof; and that, as a matter of fact, Ada lodge did pay for the deceased assessment number 138, and his subsequently accruing dues until the time of his death. It is perceived that the language above quoted is permissive. The word may is used. The lodge may, under such circumstances pay to the supreme lodge the assessment of the sick member so as to prevent his suspension. It may, and it may not. It may, if it has funds and if it resolves to do so, but if it have no funds, or if the attitude of the sick member towards the lodge, or his standing in the lodge, be such that the lodge do not see fit to extend to him this credit, it is not obliged, by the above
Considerable stress was laid upon the acts of the-secretary and financial secretary of Ada lodge towards the deceased after he sent in his notification that he had ceased to be a member of the order, on October 9. On. October 28, his name still remaining on the roll of members of the order, the secretary notified him of his appointment as a member of the visiting committee. It is shown that the members were appointed on such committees in rotation, and the secretary sent the notice to him in the-ordinary routine of the secretary’s duties. On November 1, the secretary mailed to him a notice of another assessment made by the grand lodge upon the members of the-class in which he was, to pay a death benefit, and on December 1, the secretary mailed him another notice of another like assessment. There was evidence tending to show that the secretary had carried the name of the deceased on the roll of membership until after his death. Considerable importance appears to be attached by the plaintiff to these facts, as showing that Ada lodge treated the deceased as a member down to the time of his death. The court seems to have attached a similar importance to-them, for the court refused the instructions requested by
“Under the pleadings and the charter, and other written laws, by-laws, etc., governing the defendant order, .and other evidence, you should return a verdict in this .cause for the defendant, unless you believe, and find, from the evidence, that notwithstanding the lótter of deceased of October 9, 1884, and his omission to pay the assessments mentioned in evidence, the Ada lodge, until the time of his death, continued to and did regard and treat Fred. Borgraefe, the deceased, as a member thereof, and intended to and did regard and treat the dues by him payable to said lodge, or order, as debts due to said lodge, for which said lodge intended to and did extend him credit,'and so continued to do to the time of his death. Should you so find, you will return a verdict for the plaintiff for $1,090, less such sums as you may find, from the evidence, said deceased owed said lodge, or •order, at the time of his death, with interest on the balance so found at six per cent, per annum from the date, when you believe from the evidence payment of said ■claim was demanded of the defendant order by the plaintiff, and unless you find the facts as aforesaid, you should return a verdict for the defendant.”
This act of the secretary of Ada lodge is all the evidence which we gather from the record tending to show that “Ada lodge, until the time of his death, continued to and did treat Fred. Borgraefe, the deceased, as a member thereof, and intended to and did regard and treat the dues by him payable to said lodge, or order, as debts due to said lodge, for which said lodge intended to and did extend to him credit, and so continued to do to th© time of his death,” as recited in the above instruction. We, on the other hand, attach no importance whatever to these acts of a merely ministerial officer of the subordinate lodge to which the deceased had belonged. All the members of such an order are conclusively presumed to know its laws and rules. Coleman v. Supreme Lodge,
It was argued in behalf of the plaintiff, at the bar, that there was no forfeiture in this case, because the declaration of a forfeiture is a judicial act, and neither Ada lodge, nor any other judicatory having the power
We wish to be carefully understood as having taken into consideration the provisions of law four of this order, relating to the suspension of members who become three months in arrears for dues to the lodge. By section one of that law, it is provided that any member thus delinquent, “shall be suspended from the (subordinate) lodge.” Whether, for such a delinquency, an adjudication of suspension may not be necessary it is not material to inquire, because the dues for which this member stood suspended, by operation of the laws of the order, were not dues to the subordinate lodge, but were dues to the supreme lodge. We understand that the fund in the possession of a subordinate lodge for the purposes of the lodge, is an entirely distinct fund, governed by entirely distinct rules, from the relief fund, which is controlled by the supreme lodge. It was for the non-payment of an assessment to this relief fund that the deceased member in this case stood suspended, at the time of his-death, by operation of the laws of the order, and the state of his account in respect of the fund of the subordinate lodge is an immaterial inquiry.
In the foregoing recitals of the facts, necessarily long, we have stated that the evidence in various particulars “tended to show” a given state of facts. We understand that there is no contradiction in the evidence as to the essential facts which determine this case, namely: that assessment number 138, class A, was regularly made by the proper officer of the supreme lodge, this defendant; that the deceased member of Ada lodge, Fred. Borgraefe, was regularly notified of this assessment; that he neglected to pay the same; that he was thereafter regularly notified by mail by the financial secretary of Ada lodge that he must pay his assessment or that he would stand suspended after the lapse of fifteen days, by operation of the laws of the order ; that he, nevertheless, did not pay this assessment within fifteen days, nor at
As the plaintiff was not entitled to recover upon the undisputed facts above disclosed, it would not serve the purposes of justice to remand the cause for further proceedings. The judgment will be reversed merely. It is so ordered. All the judges concur.
ON MOTION TO BBMAND.
Thompson, J., delivered the opinion of the court.
The plaintiff files a motion that the court alter its judgment so as to remand the cause for another trial, and demands that this be done, emphasizing the word demand. Every person may rightfully demand justice at the hands of the judicial courts, but where a difference of opinion
We, therefore, so modify the judgment of the court as to remand the cause for further proceedings not inconsistent with this opinion. It is so ordered.