Lavin v. Grand Lodge of the Ancient Order of United Workmen

104 Mo. App. 1 | Mo. Ct. App. | 1904

BLAND, P. J.

(after stating the facts as above).— 1. Law 197 of the order, which provides that failure of a member to pay any assessment on or before the twenty-eighth day of the month in which the same is payable, shall, ipso facto suspend his beneficiary certificate, is attacked by the plaintiff as being harsh, unconstitutional, and not self-enforcing. She contends that under all circumstances, a non-paying member of a beneficiary association is entitled to notice and to a hearing under the laws of the land, before he can be lawfully suspended, and the cases of Seehorn v. Catholic Knights of America, 95 Mo. App. 233; State ex rel. v. Merchant’s Exchange, 2 Mo. App. 96; Lewis v. Benefit Ass ’n, 77 Mo. App. 586, and McMahon v. Maccabees, 151 Mo. 522, are cited as supporting this contention. In the Seehom case, it appears that any branch of the order was permitted to carry a delinquent member by paying his assessments to the grand body, and that when it tired of this, the president of the branch might suspend the member. The member attempted to be suspended was in arrears for three assessments, which his branch had paid for him. The branch became tired of paying his assessments and by vote suspended him and entered its action on the minutes of its proceedings. The president then verbally proclaimed him suspended. It was held that the action of the branch was void, for the reason the power to suspend was not vested in the branch, and that the president could not suspend by a mere oral proclamation, and that the member was entitled to notice and a hearing. In State ex rel. v. Merchant’s Exchange, supra, a by-law of the exchange, which compelled members to submit their' business controversies to arbitration, on pain of '¡suspension or expulsion, was held unreasonable and void. In this case it was held that membership in the Merchant’s Exchange was a property right. In Lewis v. Benefit Ass’n, supra, the laws of the order provided that the benefit certificate is annulled by the suspension of a member and the by-laws of the subordinate council of the order provided- that any member, thirteen weeks in arrears for dues, forfeited all rights and privileges. The deceased was in arrears for twenty-four weeks ’ dues, but was never formally suspended by the order. It was held that the forfeiture did not attach until the. member is actually and legally suspended and that he was entitled to notice and to hearing, citing Puhr v. Grand Lodge, etc., 77 Mo. App. 47. The case of McMahon v. Maccabees, supra, does not discuss the validity of laws like the one in hand. In none of the above cases was a by-law like No. 197, of the defendant order, brought under review, and in none of them was it held beyond the power of a benevolent beneficiary association, doing an insurance business, to pass and enforce a law which ipso facto forfeits a beneficiary certificate for failure to pay any assessment made for the purpose of meeting death losses. The regular assessments levied by the defendant order to pay death losses are classified according to the age of the members. They are monthly and payable on or before the twenty-eighth day of each month. They are as regular as clockwork, are certain as to amount and time of payment, hence no special notice of their levy or of the amount or time of payment was necessary. A member holding a beneficiary certificate of the order, receives this notice once for all when he receives the certificate which, in effect, incorporates this law of the order into the contract of insurance, and a member, by accepting the certificate, agrees to pay the monthly assessments as required by Law 196, as a condition precedent to the continuance of his certificate in force. That it is competent for a beneficiary association, and a member thereof to so agree, it seems to us admits of no doubt and that such an agreement is just and fair to all the members of the order holding insurance certificates, is self-evident. A self-executing law of this kind was held valid in the following cases: Boyce v. Royal Circle, 73 S. W. 300, 99 Mo. App. 349; Borgraefe v. Knights of Honor, 22 Mo. App. 127; Harvey v. Grand Lodge A. O. U. W., 50 Mo. App. 472; Scheele v. State Home Lodge, 63 Mo. App. 277; Smith v. Knights of Father Matthew, 36 Mo. App. 184; Curtin v. Grand Lodge A. O. U. W., 65 Mo. App. 1. c. 300; Zepp v. Grand Lodge A. O. U. W., 69 Mo. App. 1. c. 493. In Modern Woodmen of America v. Tevis, 117 Fed. 369, it is said: ‘ ‘ Stipulations to insure the prompt payment of the benefit assessments constitute the substance and the essence of insurance contracts of beneficial associations.”

2. The learned trial court found the law (No. 197) requiring prompt payment, had been waived. It is well-settled law that the enforcement of a law to insure prompt payment, may be waived by tbe order issuing tbe certificate of insurance. The evidence upon which the court found a waiver of the law, came from Walsh, the financier of Standard Lodge, No. 80. The laws of the order requiring the subordinate lodge to collect the monthly assessments from the members and to make remittances on the first day of the succeeding month to the grand recorder; if the remittances were not made by the eighth of the month, the law pronounced the subordinate lodge in default, and if not made by the fifteenth, the lodge stood suspended. Walsh testified that his practice was to make up the report and send it in with the assessments, anywhere from the first to the twelfth or thirteenth of the following month, and that at any time prior to sending in this report and remittance, his practice was to receive assessments from any delinquent member and report him as having paid the assessment, and that prior to September, 1900, he had frequently extended this favor to Patrick Lavin and continued him on the roll of membership in good standing, but there is not a syllable of evidence that the grand recorder, or any other grand officer of the order or the .'grand lodge, had any knowledge or information of this practice of Walsh of receiving assessments after the twenty-eighth of the month and then reporting them as having been paid on that day, nor is there any evidence ■that Walsh’s lodge, as a body, had any knowledge of this '^practice of its financier, nor is there any evidence that the financier of any subordinate lodge, other than Standard Lodge, No. 80, indulged in this negligent benevolent practice toward his brethren of the order. There is, therefore, absolutely no evidence that the grand officers of the grand lodge ever knew or assented to this negligent practice of Walsh. Walsh was not appointed by the grand lodge or by any of its grand officers to collect assessments. The laws of the order made it the duty of. the subordinate lodge to collect and remit assessments. Walsh’s authority to make these collections came from Ms local lodge and lie was accountable to it, not to the grand lodge for his conduct. The fact that the local lodge used him as its officer to make the collections and remittances for it, did not transform him into an agent of the grand lodge, nor bind the latter by any habit he may have practiced in respect to such collections, nor impart notice to it of such habit. That the officer of a subordinate lodge, who is not even an agent of the grand lodge, has power to waive a by-law of the order, seems to us preposterous. That he cannot do this, has been ruled in many cases. Borgraefe v. Knights of Honor, 22 Mo. App. l. c. 141; Chadwick v. Order of Triple Alliance, 56 Mo. App. 463; Harvey v. Grand Lodge A. O. U. W., 50 Mo. App. l. c. 477; McMahon v. Maccabees, 151 Mo. 522; Royal Society of Good Fellows, 153 Mass. 83; McCoy v. Roman Catholic Mutual Ins. Co., 152 Mass. 272; Miller v. Hillsborough Fire Assn., 42 N. J. Eq. 459; Royal Highlanders v. Scovills, 92 N. W. Rep. 206. Graves v. Modern Woodmen of America, 89 N. W. (Minn.) 6, is on all fours with the case at bar. There the clerk of the subordinate camp collected and forwarded the assessments, and he, like Walsh, would collect assessments after the day they were due and report them as collected on the day they were due. It was held that this custom of the clerk was insufficient as a waiver, being unknown to the society. The same ruling was made in Boyce v. Royal Circle, supra. In similar circumstances, the Supreme Court of Virginia, in Knights of Honor v. Oeters, 95 Va. 610, held: “The forfeiture of a certificate in a benefit society is not waived by the fact that the financial reporter of a subordinate lodge is in the habit of receiving payment of assessments after the end of the month for which they are levied, and within which they are payable, under the penalty of suspension and a forfeiture of the benefit certificate, when there is no evidence that the supreme lodge, which is sued on the certificate, is aware of such habit. ’ ’

3. The letter offered in evidence and purporting to have been written by the plaintiff, and evidently intended for the lodge of which Patrick Lavin had been a member, we think, should have been admitted in evidence. True, Mrs. Lavin testified that she did not write it, nor authorize its writing, but Walsh testified she came to him and asked him to intercede with the lodge in her behalf; that he told her to write a letter to the lodge; that afterwards the letter was handed to him, either by the plaintiff or one of her daughters. It was received and read in open lodge. It was an issuable fact, under this evidence, as to whether or not the plaintiff wrote the letter or had it written for her benefit. If she did write it and put it into the hands of Walsh to be presented to the lodge, it was very important evidence to support the second defense set up in the answer, viz., that Patrick Lavin abandoned the order several months prior to his death. If this letter is genuine, it, in connection with the fact that Patrick Lavin, for two-thirds of a year prior to his death, paid no monthly assessments and at no time made any effort to have himself reinstated, within the three or six months period allowed him by the laws of the order, after he must havé known he was suspended for non-payment of monthly assessments, seems to us to be very convincing evidence that he had abandoned his connection with the order. State ex rel. v. Grand Lodge A. O. U. W., 78 Mo. App. 546; Glardon v. Supreme Lodge Knights of Pythias, 50 Mo. App. 45; Supreme Lodge K. P. W. v. Wilson, 66 Fed. 785; In re Hulitt, 96 Fed. Rep. 786.

4. If the September, 1900, assessment' was tendered Walsh on the third and fifth of that month, as Lavin’s children testified it was, then there could be no forfeiture of the certificate of insurance for the non-payment of the assessment for that month, and the plaintiff is entitled to recover, unless the defendant is able to substantiate its second defense, which is that Lavin, after September, 1900, wholly abandoned the order. That these issues of fact may he properly tried, the judgment is reversed and the cause remanded.

Reyburn and Goode, JJ., concur.