50 Mo. App. 45 | Mo. Ct. App. | 1892
— This action was instituted by the widow and children of John P. Glardon, deceased, to recover from the defendant the sum of $1,000 on a benefit certificate, known as a certificate of membership in the first class, issued by the defendant to the deceased. The case was tried by the court sitting as a jury; judgment was entered for the defendant, and the plaintiffs prosecute this appeal.
The answer sets up that John P. Glardon was not in good standing in the endowment rank at the date of his death, which took place on the fifteenth of October, 1883, and that he was not a member of such endowment rank. And it pleaded two special defenses as follows: First. That there was due from said John P. Glardon on the first day of July, 1882, to the secretary and treasurer of 'section number 7 of the endowment rank of the defendant, of which he was a member, and in which his certificate of membership was issued, an assessment of $1.10, designated as
Second. The second special defense was that the said John P. Glardon was also a member of Damon Lodge, number 28, and that there was, on the first day of July, 1882, due from him to said lodge the sum of $1.50 as quarterly dues, which said dues were never paid or offered to be paid by him at any time prior to his death, on October 15, 1883, by reason whereof, under the constitution governing sections of the endowment rank, the said Glardon was not in good standing in said endowment rank at the date of his death.
The plaintiffs, by a reply, denied that said Glardon was ever notified of said assessment number 38, and that he either neglected or refused to pay the same; and denied that, at the date of his death, he was indebted to the lodge for quarterly dues, and averred that he was arbitrarily and without warrant or authority dropped from the list of members of the lodge by the secretary thereof about the fifteenth of July, 1882, and that the secretary thereafter refused to receive from him any payments whatever, due or payable to said lodge, or to the order, whether as a member of the order, the lodge or of the endowment rank, though tendered by and in behalf of said Glardon.
At the trial the defendant made the following .admissions of evidentiary facts in favor of the plain
Thereupon the defendant gave evidence tending to show, and not afterwards contradicted, that in every state of the Union there are subordinate lodges of the order known as the Knights of Pythias, and also a grand lodge, and over all a supreme lodge; also that there is what is known as the endowment rank, which is a department of life insurance connected with the order outside of and separate from both the subordinate and grand lodges, and under the direct control of the-supreme lodge, but sustaining this connection with the order: That to be a member of the endowment rank it is necessary to be a member in good standing of some-subordinate lodge. Several provisions of the laws governing the endowment rank and subordinate lodges were put in evidence, of which we quote the following:
Sec. 2, art. 4. “When a member voluntarily withdraws from membership in his lodge, or is suspended therefrom for non-payment of dues, or whenever his membership therein ceases from any cause, he thereby severs his connection with this rank and*49 forfeits all Ms rights therein and the endowment fund, and everything he may contribute thereto.’’
Sec. 3, art. 4. “If a member of a section is suspended from his lodge for any cause, and an appeal is taken from the action of the lodge, the action of the lodge' stands in full force until reversed by the grand or supreme lodge, and membership in this rank ceases at the time of suspension from the lodge. Should the action of the lodge be reversed by higher authority, the standing of the member would be the same as if no action was had, and he must pay all assessments made during such suspension and pending said appeal.”
Sec. 1, art. 6. “The secretary and treasurer shall keep a financial account with each member of the section, charging him with each assessment immediately upon notification of the same from the supreme master of exchequer, and crediting him upon payment of the same. He shall notify the supreme master of exchequer of every failure to pay the assessment within the prescribed time. He shall make a monthly report to the supreme master of exchequer on the first of every month and transmit therewith all moneys for all assessments, due and,, past due, belonging to the endowment or the expense fund of the endowment rank.”
Sec. 4, art. 6. “Upon receiving from supreme master of exchequer notice of an assessment, he shall immediately forward the same to that officer, and give notice to each member of the class in which the assessment is made, in the prescribed form, and notify him to pay the assessment within thirty days.”
Sec. 1, art. 7. “Upon receiving notice of an assessment each member shall at once pay the amount to the secretary and treasurer of the section to which he belongs. In ease any member neglects for thirty*50 days after date of notice to pay said assessment, lie shall stand suspended from that class of the endowment rank for which said assessment was made, and shall forfeit all claims upon the endowment fund belonging to such class, and the fact of such suspension shall be reported to the supreme master of exchequer in the monthly report, provided that any member suspended for the non-payment of assessments shall have the privilege of regaining all his privileges in that section bypassing anew medical examination,” etc.
It was also admitted by the plaintiffs, as an evidentiary fact in favor of the defendant, that dues to the lodge, as distinguished from assessments in the endowment rank on the death of a member, were $6 a year, payable in equal quarterly installments to the secretary and treasurer of the lodge; and that, on the first day of July, 1882, there became due to the lodge by John P. Glardon the sum of $1.50, payable within six months thereafter, under penalty of forfeiture of good standing.
The defendant further read the following from its manual, the same being found in section 1 of article 11: “Every member shall be considered in good standing in the section as regards dues, who is not more than six months in arrears for dues to his lodge, and shall not be considered in good standing in the section as regards dues, who is more than six months in arrears for dues to his lodge.”
The defendant also gave evidence to the effect that the secretary of the lodge of which Glardon was a member, on the twenty-ninth of June, 1882, mailed to Glardon at his then residence a postal card notifying him of assessment number 38; that similar notices of all previous assessments had been sent to Glardon, who had answered them by paying all of his assessments except
Let us now consider what was pleaded and proved with'the view of taking the plaintiffs’ case out of this predicament. It will be recalled from the foregoing statement that the plaintiffs by their reply pleaded that, on the fifteenth of July, 1882, Glardon was, by the secretary of the lodge, of which he was a member, arbitrarily and without warrant of authority dropped from the list of members; and that, on or about the eighteenth of July, 1882, the secretary of the lodge refused to receive from him any payments whatever, due or payable to the lodge, or to the order, whether as a member of the order, the lodge, or of the endowment rank, though the same were tendered to him by and in behalf of Glardon, and in which refusal the secretary of the order and lodge persisted until the death of Glardon. The plaintiffs gave no evidence whatever
As there was no evidence at all to support the tender of dues which was thus pleaded, the plaintiffs attempted to support the allegations of their reply by evidence of a state of facts which, in the view of their counsel, would excuse the making of a tender. That state of facts was that Glardon was, by a mere entry on the minutes of his lodge, suspended from membership therein for the period of ninety-nine years under the statute of the order above quoted, which authorizes the suspension of members who have been convicted of felony. The evidence tended to show that this suspension was a mere ex parte act of the lodge, and that it took place without notice to Glardon, or without any appearance, trial or investigation in the nature of a trial of the fact, whether or not he had been convicted of a felony; nor does it in any way appear that he had been so convicted, but the evidence was inferentially to the contrary.' This evidence, also given by the plaintiffs, was to the effect that Glardon had been for a number of years engaged in St. Louis in selling lottery tickets; that, while he was so engaged, the legislature of this state passed an act making the sale of lottery tickets a felony; that, because he was engaged in that business regularly, making his living that way and making no disguise of the fact, the lodge undertook to suspend him in the manner stated. Such was the testimony given by Dr. Garcia, a witness for the plaintiffs who professed great friendship for Glardon and for his family, and who disapproved of the act of the
The statute of the order, under which this ex parte expulsion was attempted, was probably the following, which is section 12 of' article 11 of the constitution of subordinate lodges: “Any brother who may have been found guilty of felony by a court of competent jurisdiction, and has been, sentenced, shall be suspended from the order for a term not exceeding ninety-nine years, without any further trial, as soon as the fact of sentence has been passed (sic), has been proved by public records, or witnesses duly sworn; and the fact of such suspension shall be immediately communicated to the grand keeper of records and seals, and by him communicated to each lodge in the jurisdiction once every quarter; and no member suspended .for such cause shall ever be reinstated without the express consent of the grand lodge.” The next section of the same article provides for an appeal to the grand lodge in the following language: “Sec. 13. An appeal may be in all cases taken to the grand lodge by the accused, or any five knights, from the decision of the subordinate lodge; of which appeal notice shall be given at the same or next succeeding meeting after the decision or action complained of was had.”
Section 16 of the same article is as follows: “During the pendency of an appeal, the appellant shall occupy the position in which the action of the subordinate lodge placed him.” Section 7 of article 12 is as follows: “A member suspended for a definite period, for cause, may be restored to membership upon the expiration of such period, so far as membership is concerned, and no application for reinstatement shall be required. During such suspension no dues or
Section 8 of the same article is as follows: “If the suspension be for a longer period than one year, the suspended member may, upon the expiration of one year, and after one month’s written notice thereof, apply to the lodge for a commutation of the term of suspension, which application shall be in writing, and shall state the cause of suspension and the ground on which such application is based. If two-thirds of the members of. this lodge, present at a stated meeting, vote in favor of such commutation, the same shall be certified under the seal of the court to the grand lodge, if in session, or to the grand chancellor during recess; and if such action of the lodge be approved, either by the grand lodge or the grand chancellor, the term of such member’s suspension shall stand commuted, and he be restored to all the rights and privileges to which he was entitled before suspension.”
By the law of the order above set out the jurisdiction to suspend existed only in the case of a conviction of felony, and we must, therefore, take it that the lodge had no jurisdiction to suspend in this case. In dealing with a similar subject in Mulroy v. Knights of Honor, 28 Mo. App. 463, 474, we held that, where the suspension of a member of a mutual benefit society by his lodge is without jurisdiction, — as where it takes place upon a charge upon which the lodge has no jurisdiction to try or expel him, — his expulsion is null and void, and, being merely void, it is not incumbent upon him to take steps to have it reversed in a higher judicatory of the order, but that it leaves him clothed with the rights of membership, at least in respect of the mutual benefit fund of the society, to the same extent as though it had not taken place. "We also said: “Thereafter, if he paid no assessment, he was not
This we take to be a very salutary and necessary qualification of the doctrine of Mulroy v. Knights of Honor, supra. The propriety of it will be manifest, when it is considered that a benevolent order of this kind may, and, as in the present case, often does,
But, in the present case, we see no evidence tending to show a disaffirmance by Glardon of the void sentence of expulsion. A right of appeal was open to him, but he did not exercise it. This, it is true, would not of itself be evidence of an acquiescence in the void
The present case also presents this peculiarity: That the defendant does not set up this void sentence-of expulsion and claim that, by reason of, it, Glardon ceased to be a member on the fifteenth of July, 1882, but it does set up his non-payment of assessment number 38, for the period of thirty days prior to his death, after notice, and also the non-payment of his quarterly lodge dues accruing on the first of July, 1882, for a period of six months prior to his death; and, under the laws of the order, it rests its conclusion that his membership had been forfeited upon these facts. But the plaintiffs plead the void sentence of expulsion, accruing after these dues became payable, as a fact excusing him from making any tender of these or any subsequently accruing dues. If this position is tenable-in the case where a subordinate lodge, or the officers of it, should make the mistake of expelling or suspending-a member without jurisdiction, or in violation of the laws of the order, the expelled or suspended member-might rest indefinitely in his state of expulsion or suspension without paying subsequent dues, and, in the-event of his death, the beneficiary in his certificate-would be entitled to the sum therein assured, equally
We, therefore, laying out of view the declarations of law given and refused by the learned judge of the circuit court, must hold that the defendant had established an incontestable state of facts showing, as a conclusion of law, that the plaintiffs have no right of recovery under the doctrine of this court in the case of Hoeffner v. Grand Lodge, 41 Mo. App. 350; and we accordingly order that' the judgment of the circuit court be affirmed.