112 Mo. App. 1 | Mo. Ct. App. | 1905
Tbe plaintiff, Annie Lavin, is tbe widow of Patrick Lavin, deceased, who was a member of Standard Lodge No. 80 of tbe defendant Order. He beld an insurance certificate in tbe Order dated January 23, 1899, of wbicb certificate plaintiff was tbe beneficiary. It entitled ber to receive $2000 at tbe death of ber bus-band, provided be was then a member of tbe Order in good standing. This action is on that certificate for tbe amount of tbe insurance stipulated to be paid. Tbe defense is two-fold: First, that Lavin failed to pay tbe monthly assessment of $2, 62 for tbe month of September, 1900, on or before tbe 28th day of that month as required by tbe laws of tbe Order and that by such failure be was suspended immediately from bis membership in tbe Order and bis certificate became null and void; second, that on November 1, 1900, Lavin abandoned bis membership in tbe Order and severed bis connection therewith, whereby bis membership certificate became null and void.
This case was here on a former appeal, and tbe opinion given on that appeal will be found reported in tbe 104 Missouri Appeal Reports, page 1. Tbe facts of tbe case are stated in detail in connection with that decision, in wbicb we beld that there could have been no forfeiture of the certificate of insurance for tbe non-payment of tbe assessment for September, 1900, provided it was tendered to tbe financier of tbe Order as required by tbe bylaws, prior to tbe 28th day of tbe month. Tbe case was then reversed for certain errors and remanded to be re
“St. Louis, Mo. April 17,1902.
“Dear Sir:—
“I am writing this letter to ask assistance for myself and five helpless children. My husband, Patrick*5 Lavin, died nine months ago. He was a member of yonr lodge. I was unable, utterly unable, to keep up payments of his lodge, so he fell back during the strike, was never able to catch up. He was in poor health, but always tried to keep on his feet, and to work, as he had no other support than his wages, which were $1.25 per day. Now since he is dead I am left to pay the rent, get food and clothing and support myself and five children. I have got heart trouble and of a very delicate constitution, and not really able to work to support such a heavy charge. I would be very greatful and appreciate any assistance given me from the brotherhood.
“Yours very respectfully,
“Mrs. Pat. Lavin.”
Mrs. Lavin denied writing that letter. Other evidence was introduced tending to prove Lavin abandoned the Order. It was shown by a witness or two that he had expressed dissatisfaction with it and an intention to discontinue his membership. He paid no assessments or dues and made no tender thereof after September, 1900, although he lived until July 21, 1901.
Under the instructions of the court a verdict was returned for the plaintiff.
The contention of the defendant is that the court erred in refusing to direct a verdict for it, and this for two reasons. The first one is that the evidence conclusively proved Lavin neither paid nor tendered his September assessment prior to the 28th day of that month and, hence, he became suspended as a member. It should be stated that the by-laws provided for suspension ipso facto if.a member failed to pay his assessments seasonably. N° proceeding or hearing was necessary to work a suspension; and this sort of by-law is valid. We reject the argument that all the evidence went to show Lavin defaulted in September. The evidence is by no means conclusive that he did. There was testimony for the jury to weigh on the issue; for if the children told the truth, and they were not altogether uncorroborated, the Sep
The other reason advanced in support of the proposition that the court shoud have directed a verdict for the defendant, is that Lavin neither paid nor tendered any assessment subsequent to September, 1900, though by the laws of the order, one fell due each month until he died. He neither paid further assessments nor took any steps to question his suspension or be reinstated, Therefore, it is argued, there can be no recovery on the certificate. According to the by-laws of the Order, Lavin could not be suspended from membership and his certificate forfeited for non-payment of dues, except by a certain procedure in the lodge, which was not taken. If the certificate became null and void for defaults after October, 1900, it was for failure to pay assessments. It is important here to ascertain the exact facts. The testimony for the defendant is that Lavin owed $2.62 in September, and the children testified to tendering respectively three and five dollars to pay his assessment. If they made those tenders, a sufficient amount was offered to the financier to discharge all that was owing and he was in duty bound to accept payment. We are stating the facts now according to the testimony for the plaintiff, as the jury believed the plaintiff’s witnesses. It is certain that no payments were tendered for the subsequent months of Lavin’s life, and that he made no effort to obtain reinstatement. The position taken by the defendant’s counsel is that these undisputed facts show an acquiesecence in his suspension if he knew of it; or, if he did not, an abandonment of the Order — that if he expected to retain his insurance, he was bound to treat himself as a member and seek reinstatement, or, at least, offer to pay subsequent assessments, which the by-laws required
“The court instructs the jury that, even if they find from the evidence that Patrick Lavin, or some one for him, tendered the financier of the Standard Lodge No. 80, in proper time, his assessment for September, 1900, and that the tender was refused, such refusal did not justify said Lavin in thereafter neglecting to pay or offer to pay subsequent assessments; and, if the jury find that between November, 1900, and July 24th, 1901, the date of his death, said Lavin did not pay or offer to pay further assessments, nor take any action toward dis-affirming his suspension, if he knew of it, then said Lavin acquiesced in his suspension; and the jury must find for the defendant.”
That instruction submitted the issue of whether Lavin defaulted in his assessments after September, and precluded recovery on the certificate of insurance if he did. This was trying the cáse according to the theory of the defendant’s counsel, whose complaint is not of the. instruction, but that the jury ignored it, as all the evidence went to show nothing was paid by Lavin after September. This was true; and if the instruction was sound, the court should have gone further and ordered the jury to return a verdict in favor of the defendant. The question for us to decide then is, does the fact that Lavin paid no assessments after September, bar recovery if, as the jury must have found, he had tendered the full amount due in September on two occasions and the financier of the Order had refused to accept the tenders? The position of plaintiff’s counsel is that after Lavin had made two offers to pay his September assessment, it was incumbent thereafter on his lodge to notify him when it was ready to receive assessments from him, and until, thus notified, he was under no obligation to make further tenders. There appears to be some discrepancy in the authorities bearing on the point in hand; though,
The proposition before us was presented to the Supreme Court of Nebraska in a case against this very defendant and decided both ways. The first decision was that the failure of the insured to tender assessments after his wrongful suspension, forfeited the insurance. Grand Lodge Ancient Order United Workmen v. Scott, 93 N. W. (Neb.), 90. On a rehearing that decision was overruled and it was held no forfeiture occurred, as the financier of the order alone was to blame, he having refused the assessment when tendered. That case is in point, but admits of one distinction from the case at bar. Scott had made a deposit with the financier of the local lodge sufficient to cover the assessments for several months; that is from September, 1893 to January 1, 1894; but the financier had refused to apply the deposit in payment of either of the assessments for the four months. This, of course, was equivalent to the rejection of four tenders. However, the reasoning of that case is favorable to the present plaintiff’s cause. In Sovereign Camp Woodmen of the World v. Hicks, 84 S. W. 425, the Texas Court of Appeals held that an insured who had been unlawfully suspended for non-payment of assessments, which he had done all he could to pay, lost his insurance by failing to tender subsequent assessments during the several months he continued to live. The court said:
“Payment of the January assessment would not ex*13 cuse non-payment of subsequent assessments, and it cannot be-reasonably contended that a mere offer to pay the January assessment would absolve from failure to pay the February and March assessments. Deceased was charged with a knowledge of the constitution and laws of the order, and, if he failed to obey them, the beneficiary can reap none of the benefits of the certificate arising from his death.”
In Karcher v. Sup. Lodge, 137 Mass. 368, it was ruled that though a member of the defendant order might have been wrongly suspended, as he failed to appeal from the suspension he lost his rights as a member. Karcher was suspended for the non-payment of an assessment which he was prevented from paying by illness. In Simmons v. Ben. Soc., 10 N. Y. Supp. 293, the decision was that it was no defense to an action on a benefit certificate that the insured was in arrears for dues, he having paid all dues until he was wrongfully expelled and tendered those accruing afterwards and until his death. The doctrine of the last two cases looks reasonable; because, as we have already said suspension due to mistakes are apt to happen in conducting these societies, and as the mistakes can be corrected, it is nothing but just to require the insured member to> apply for redress if he wishes to retain his membership. The adoption of the converse ruling would be most unjust and lay societies liable on certificates of insurance held by persons who, through months or years, contributed nothing toward defraying the expenses of the order or discharging its insurance obligations. This court has had occasion to deal with the question, and we think the fair deduction from its decisions is that unless there is some better reason than existed in this case for a member’s failure to remonstrate against his suspension, or tender assessments after one has been declined, he loses his rights as a member. The subject was first touched in Mulroy v. Knights of Honor, 28 Mo. App. 463. Mulroy had been unlawfully expelled by his lodge, and, so decid
“The rule of law is maintained with great unanimity that one party cannot predicate a forfeiture upon an omission by the other which his own conduct has helped to bring about; that the declaration that a policy of insurance is already forfeited will constitute a sufficient justification for the omission to tender subsequently accruing premiums or instalments, upon the ground that the assured is justified in believing that no tender would be accepted, and the formality is therefore unnecessary; that the law will not require the doing of a vain thing. 2 Joyce, Insurance, section 1123; Shaw v. Republic L. Ins. Co., 69 N. Y. 286; Girard L. Ins. Co. v. Mut. L. Ins. Co., 86 Pa. St. 236; Nat. Mut. Ins. Co. v. Home Ben. Soc., 181 Pa. St. 448.”
The rule thus declared is a sound one when the facts authorized its application, as they did in the Wisconsin case, and such other decisions as we have examined wherein it was followed. We are of the opinion, too, that it is a rule which might find fit application to the conduct of a fraternal insurance company in suspending a member and forfeiting his insurance in an oppressive and arbitrary manner. But it is obvious that to give effect to the rule, where such a society suspends a member by mistake, and its by-laws afford ample means for the reinstatement of members even rightly suspended, would work gross injustice. If we take into consideration the general spirit of the by-laws and rules of the defendant in providing for the reinstatement of members, it cannot be held logically that a breach of duty by the order estops it to claim a forfeiture of membership and authorizes an injured member to refrain, thereafter, from paying dues and assessments. The by-laws, far from contemplating his suspension as concluding a member’s rights or giving the association the advantage of a forfeiture, look to his seeking relief. Every breach of a contract by one party does not release the other party
“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, consist of many lodges and members scattered through all the States of the Union; that the class or rank of members who become contributors in the case of the death of one of them, may belong to many lodges; that the indemnity of the beneficiaries of these members rests largely upon the integrity and right action of particular lodges over whose action the members of the particular rank or class can exercise no control; from which it would seem to follow that, in the case of an expulsion, even though void, taking place by the act of a particular lodge or its officers, the expelled member is so far under a duty to his cocontributors of the class or rank to which he belongs as at least to make known his want of acquiescence in the sentence of expulsion. The rights of such a member, as has been often pointed out, rest merely in contract; and hence, his expulsion from the lodge and the order, and*20 Ms consequent deprivation of Ms membership and of his life insurance under his benefit certificate, is no more than the breach of a contract; and, although taking place by an act void for want of jurisdiction, it is no more than an act which is void in the sense of being voidable at the election of the member thus expelled. Clearly he may, at his election, affirm or disaffirm it. Where, as in the Mulroy case, he resists the expulsion, though without appeal, and fails for a year to pay subsequent dues, because such dues are not demanded of him, it may be regarded that-he has sufficiently manifested his disaffirmance of the sentence of expulsion; and where, as in the Hoeffner case, he contiues to tender all dues when payable, this is clearly so.”
Other pertinent remarks, which we do not care to recite, were made in support of the doctrine that if a member wrongly suspended or expelled, does nothing thereafter in the way of protest or to show that he regards himself as a member despite his suspension, he should be deemed to have acquiesced in the suspension. It is true that in the Glardon case the insured was in default when he died, not only for dues which had accrued after his expulsion, but for some which had accrued before. But we do not see that that fact cletracts from the effect of the decision in establishing the doctrine that a member wrongly suspended or expelled, must do something to show he continues to insist on his rights as a member in order to avoid acquiescing in his suspension. The doctrine was again recognized in Purdy v. Life Assn., 101 Mo. App. 91, 107, 74 S. W. 486. Without deciding that a benevolent society may not so behave toward an insured member as to estop it to claim a forfeiture, even if the member paid no further dues or premiums, we do decide that to justify him in taking that course, the conduct of the society must be of a character to fairly imply that efforts to obtain recognition of his rights would prove fruitless. Nothing of the sort was proved against this defendant. In view of all the facts we