104 Mo. App. 528 | Mo. Ct. App. | 1904
This case was here on a former appeal and will be found reported in 99 Mo. App. 349, 73 S. W. 300. The record at that time was in a very incomplete state and showed practically no evidence for the plaintiff except the certificate of insurance and a section or two of the constitution of the order. So far as we could gather, no proof was offered by the plaintiffs that they had paid the per capita tax for the latter half of the year 1900, or some of the monthly assessments. The constitution and by-laws provided for an assessment of fifty cents a month on each member of the class to which the deceased belonged, and also for a per capita tax of $1.50 a year to be paid semi-annually in June and December. As will be seen by the statement in the former opinion, the failure of a member to pay either of those dues within the months they were payable,, terminated the membership. A member had the entire month, for which an assessment was due to pay it in and could pay his per capita tax at any time during June
At the first trial there was a peremptory instruction to find a verdict for the plaintiffs; apparently on the assumption that it was the duty of the order to make a levy each month of the assessment and to make a levy twice each year of the per capita tax, and that a member owed nothing until a levy was made and notice of it given. On whatever theory the peremptory instruction was granted, we held it to be erroneous and returned the case for another trial. There is a complete transcript of all the evidence taken at the second trial before us now, containing the testimony of Minnie Henderson, sister of the deceased, Thomas J. Henderson, the party insured, as to the payment of, or offer to pay, his dues, as they accrued. She testified positively to paying or tendering various monthly dues during the months they matured and also to tendering the semiannual per capita tax for the latter half of the year 1900, in Juñe, which was the month when it ought to be paid. She said she paid her own dues and tendered her brother’s, or paid them, at the same time; that when she tendered the per capita tax, the secretary of the local lodge declined to accept it for the reason that he did not have his book with him and could not enter the payment. If her- narration of the facts is truthful, there was simply no der linquency and the attempt to treat Henderson’s membership as lapsed after May 31, 1900, was groundless. The secretary of the local lodge disputed her statements and swore the assessment for the month of May was not paid until June 11th, and that the per capita tax was not paid until more than thirty days after its maturity ; either of which defaults sufficed, under the by-laws to work a forfeiture of membership. Minnie Henderson
It will be observed by comparing the stated facts with those which were shown by the former record, that the case as presented now is materially different from
Many instructions were asked by the defendant which it would expand this opinion too much to copy. Suffice to say they were either covered by the instructions given or were unsound in their statement of the law, or were inapplicable in view -of the theory of the case adopted by the court. Practically, the plaintiffs were cut off from a recovery unless they proved that all
Tbe judgment is, therefore, affirmed.