31 Ind. App. 534 | Ind. Ct. App. | 1903
Appellant is a fraternal, benevolent, and mutual benefit association, and as such issued to one Charles E. Marshall, who was the husband of appellee, a certificate of membership, by the terms of which it undertook to pay appellee, as beneficiary, $1,000 at the death of the insured, according to the terms of the certificate. The said insured died November 12, 1900, being about sixteen months after the certificate was issued. Appellant refused to pay the claim, and appellee brought an action on the certificate to enforce payment. The case was put at issue, and tried by a jury, resulting in a verdict for appellee. Appellant’s motion for a new trial was overruled, and judgment pronounced upon the verdict.
Two questions are presented for decision, viz.: (1) The sufficiency of the first paragraph of answer, to which a demurrer was sustained; and (2) the overruling of the motion for a new trial.
In the first paragraph of answer it is alleged that from the date of the issuing of the certificate to September, 1900, the insured paid to the financier of his lodge an assessment
By the.demurrer the appellee admits the truth of all facts stated in the answer that are well pleaded. She therefore admits that notice of the assessment against the deceased was made for September, 1900, and also admits that said assessment was not paid, and further, that other payments weifi never made after that. Counsel for appellee seek to avoid the force of these admissions on the ground that the notice of the assessment was not in conformity with the laws of the order, and hence the insured was not bound by it; also that because the assessment was not legally made he was not required to pay; and, for his failure to pay, he did not forfeit his membership and his beneficiary rights. There is substantial substance and merit in this contention, provided the notice was illegal and not in conformity with the laws.
The assessment rates of the order are fixed by its constitution, and they are graded according to the age or ages of the members. The assessment which was made against the deceased in this case on the 1st of September, 1900, was for seventy-two cents; he belonging to the class against whom such assessment was authorized by the laws of the order.
Subdivisions seventeen, eighteen, nineteen, thirty, and thirty-nine of section ninety-eight of the constitution, or so much of subdivision nineteen as may be necessary to present the question, are as follows: “(17) Calls and Assessments. Whenever the beneficiary fund of the grand lodge treasury shall have been reduced to a sum less than $6,000, or when by reason of unavoidable delay in the payment of beneficiary claims, the balance of the beneficiary fund in the grand lodge treasury would, by the payment of said claims, be reduced to a sum less than $6,000, then it would be the duty of the grand recorder to call upon the subordinate lodges to forward the beneficiary fund in their respective treasuries, and, at the time of making such call, to make one assessment upon each member of the order who received the workman degree, previous to the date upon which the assessment is made. (18) Calls, When and How Made. Every call made upon subordinate lodges to forward beneficiary funds shall be dated upon the first or second day of the month, shall contain a list of all deaths occurring since the last call was made, all necessary instructions relative to forwarding the funds called for, and shall, in every case, receive the approval
Eollowing this is the call upon the subordinate lodges throughout the State for the beneficiary funds in their respective treasuries, and that call is as follows: “To the subordinate lodges of the Ancient Order of United Workmen in the Grand Jurisdiction of Indiana: You are hereby notified of the following call for the month of September, 1900: Classified call number nine. Classified assessment number nine will be made in the month of September. The beneficiary fund of the grand lodge treasury having been reduced to a sum less than $6,000, you are hereby notified that to provide for the death losses above reported, and furthermore provide for the prompt payment of death losses that may occur, one call is made necessary upon the beneficiary fund in the treasury of subordinate lodges, to be known as call number nine, and to replace the money drawn from such fund by the call above enumerated. Classified assessment number nine will be made in September. To Pay Classified Call number nine. You are required to forward to Ered Baker, grand recorder, Evansville, Indiana, at once, (1) the beneficiary fund on hand in your respective treasuries, collected from your members during the month of August on classified assessment number eight; (2) the initial assessment of those members who received the workmen degree prior to September 1, 1900, but have not been heretofore liable for assessment; (3) of back assessments paid by members reinstated _ since the last report.” Here follows directions for remittances of this
If this assessment and call are in substantial compliance with the provisions of the law above quoted, then they were sufficient, and would be binding on both the insured and his beneficiary. A member of a benevolent beneficiary association is a part and parcel of the • corporation, and is chargeable with a knowledge of its laws, rules, and regulations, and its manner of doing business. The notice shows the number of deaths that had occurred since the last assessment, and this must be construed to mean the deaths that had been reported to the grand recorder up to the time the notice was issued, for it is clear that if any deaths had occurred before the issuing of the notice which had not been reported to the grand recorder, they could not have been specified in the notice. It is the duty of the local lodges to report deaths. The rate of the assessment is also specified, the time when it should be paid, and notice given that, if not paid when due, the members failing to pay should forfeit all rights, benefits, and privileges.
Counsel for appellee insist that there is no provision of the laws of the order requiring a member to pay monthly assessments, and as the answer avers such requirement, and the constitution of the order is filed as an exhibit, the exhibit must control. Subdivision fifteen of section ninety-eight of the constitution fixes the rate of assessments, and requires that' they be paid monthly, provided that twelve assessments are required *to meet death losses. Subdivision thirty, supra, requires such payments to be made on or before the 28th of the month in which the assessments are made. This effectually disposes of counsel’s objection in this regard.
Assessments of this character are made for but one purpose, viz., to pay death losses of members-of the association who have died while in good standing. The evident purpose of the law in requiring the grand recorder to give
The appellee complains that the approval of the finance committee only applies to the call on the beneficiary fund, ,and hence is not in compliance with the laws of the order. This position is not tenable. The “above orders” are approved. This must be construed to mean and include both the notice of assessment and the call; This is made plain by the fact that the payment of said assessment is the only source of the beneficiary fund. Without the payment of the assessment there could be no beneficiary fund. The notice constitutes an order of payment, and notifies the members that if payment is not made within a given time, their rights, benefits, and privileges will be forfeited. We think the notice of the assessment and the call on the beneficiary fund were properly approved, within the meaning of the law.
Our attention is called to the rule of law that forfeitures are not looked upon with favor. We recognize the force and reason of the rule, but it is the duty of the court to declare a forfeiture upon facts which will admit of no other conclusion. We are now dealing with a question of pleading, and the facts stated therein clearly show a forfeiture. Appellant is a “fraternal, benevolent, and mu
These obligations are that, to the end that each may derive the contemplated benefits, they must both comply with the requirements of the constitution and laws of the order. So far as the answer shows, appellant did its duty, and the insured failed in his. Members of a benevolent fraternal association are bound by and must be held to a knowledge of its constitution and by-laws; and as a general proposition of law all members must be governed by them in all their dealings with it as members thereof. Supreme Lodge, etc., v. Hutchinson, 6 Ind. App. 399; Grand Lodge, etc., v. King, 10 Ind. App. 639.
It required no affirmative action of the lodge to suspend the insured for nonpayment of the- assessment. The law is well established that if by the laws of the society nonpayment of an assessment operates' as a forfeiture, the member must elect every time he is called upon to pay an assessment, either to pay within the stipulated time, or suffer the penalty of loss of membership and to benefits by neglecting or refusing to pay within the time. Bacon, Benefit Soc., 577, 578; Rood v. Railway Passenger, etc., Assn., 31 Fed. 62; Bosworth v. Western Mut. Aid Soc., 75 Iowa 582; Maginnis v. Aid Assn., 43 La. Ann. 1136.
Under subdivision thirty of the constitution, supra, a member stands suspended upon failure to pay an assessment on or before the 28th of the month in which it is1 made. We have examined the authorities cited by the appellee in support of her contention that the assessment
This conclusion makes it unnecessary to decide questions presented by the motion for a new trial.
Judgment reversed, and the trial court is directed to overrule the demurrer to the first paragraph of answer.