86 Mo. App. 406 | Mo. Ct. App. | 1900
This is a suit on the equity side of the court, brought by the beneficiary in an insurance certificate for $1,000, issued on the first day of January, 1897, by the Brotherhood of Railway Trackmen of America, an unincorporated voluntary association. The petition alleges the death of the assured, the right of plaintiff, who was his wife, to receive the amount specified in the policy, the refusal to pay the same; that defendant, John T. Wilson, and his five co-defendants are the trustees and managers of said voluntary association, and that he had in his hands and under his control the funds of the association available for the payment of the sum due plaintiff. It seeks the application, of the funds in the hands of said Wilson to this purpose, and in case of their insufficiency, it prays a decree requiring him and his co-defendants to levy an assessment, sufficient to pay plaintiff’s claim, upon the members of said association.
The separate answer of defendant, John T. Wilson, sets forth that said association consists of a grand division and variously named subordinate divisions; .admits that he is the chief officer of said grand division, and that his five co-defendants constitute the grand executive committee, which, during the intervals between the biennial sessions of said grand division, has management and control of the business and affairs of said association; admits that he is also the grand secretary and treasurer of said association, and as such has in his custody its cash funds; denies that he has any power to disburse these or to pay death claims against said
The reply of plaintiff averred that defendant Wilson, with full knowledge of the alleged delinquency on the part of the assured, furnished plaintiff with proofs of death to be filled out and delivered to him, and received and considered the same when furnished by plaintiff at some expense, which facts she pleaded as a waiver on the part of said Wilson of any right to refuse payment of said certificate.
The cause was submitted to the court and a decree and •finding entered in favor of plaintiff, accompanied by separate written findings of facts and conclusions of law made at the request of defendant, who claims, on his appeal therefrom, that-the court erred both in its ascertainment of the facts and in its application of the law.
I. The issues on the merits, tendered by the pleadings, go, first, to the fact and effect of the omission to pay dues and assessments; secondly, to the waiver of the consequences of non-payment of dues and assessments. The questions arising upon these issues are, did the assured pay the dues
*414 “Mr. J. T. Wilson, Q. 0.,
St. Lonis, Mo.
“Dear Brother:
“I have just received Harris’ dues which I enclose $2 and he wants to know if he is entitled to anything-he-as been sick for a long time and as not been able to do anything and don’t think he will be able to follow is employment anymore. Trusting you will write and let me know I remain yours in B. L. U.
“Harry Tyldesly.”
The defendant states that he had placed the $2.00 remitted by this letter to the credit of William Harris (the assured) for grand division dues ($1.50), payable July 1, 1897, for the six months thereafter, and that he credited the surplus fifty cents for the grand division dues payable January 1, 1898, for the six months thereafter, claiming that he made this application of payments in accordance with the directions contained in the letter enclosing the money.
As it is not contended that the assured was in default for any monthly assessment prior to that levied in May, 1897, it must follow,, if the money to pay the same was transmitted to the defendant for that purpose before the expiration of the last day of payment, to-wit, June 5, 1897, then there was no delinquency in the payment of dues for monthly assessments, which would have subjected the insurance certificate to the forfeiting provisions of the laws of the order. The above letter from the local treasurer discloses by its spelling and terms that it was written by an illiterate person, little accustomed to the exact use of language, and ignorant of nice distinctions between the meaning of words seemingly synonymous. It must therefore be interpreted with reference to the mental habits of the writer, disclosed by his language, and with reference to the objects
II. It is, however, urged by counsel for appellant that although it might be held that the defendant was paid the monthly assessment for May by the remittance of the $2 received by him on the fifth day of June, 1897, still not enough of this remittance was left to pay the semiannual dues, $1.50, which accrued on July 1, following, and that the fifty cents thus shown to be unpaid on the semiannual dues worked a forfeiture of the insurance certificate under the laws of the association regulating the payment of such dues. In discussing this point we leave out of view the probative effect of the evidence of the receipt book given the assured and the testimony of the plaintiff tending to show the payment by him of all his dues, assessment or semiannual, and confine our inquiry to the scope and meaning of the language of the laws of the association invoked by appellant in support of his theory of a forfeiture of the insurance certificate. The language of the constitution of the association with reference to delinquency in the payment of semiannual dues, is widely different from that relating to payment of monthly assessments. In the latter case failure to pay affects the validity of the insurance certificate, and may, under certain circumstances, cause it to become “null and void.” But no such specific effect is provided in cases of non-payment of semiannual dues. These ■merely attach the members to the general association, to which they may belong without applying for or taking out any policies of insurance. On the other hand, the monthly
III. The other points relied upon by appellant relate to the sufficiency of. the parties defendant and the alleged omission by respondent to follow up her remedies in the association before instituting this action. As to the first point, the pleadings and evidence show that defendant Wilson is in the possession and control as trustee of the association of all of its funds in this state; that no other member .of the executive board associated with him in the disbursements of these funds resides in this state. It further appears that he is the chief representative of the company, as well as its general executive officer. To reach the fund in his hands or under his control, it was not necessary to join other officers merely empowered to pass on his accounts and approve payments, and who were nonresidents of this state. The court, for the purposes of the equitable redress sought by this action, can act in rem as to the trust funds and in personam as to their custodian, defendant Wilson. We do not think, therefore, that the non-joinder of other members of the executive board of the association presented