Lewis v. Western Funeral Benefit Ass'n

77 Mo. App. 586 | Mo. Ct. App. | 1898

Bond, J.

The defendant order issued the following certificate:

“Certificate of Membership No. 3649,

OF THE

Western Funeral Benefit Association.

“St. Louis, Mo., March 12,1896.

“This certifies that Greo. A. Lewis is a member of the Western Funeral Benefit Association, Jr. 0. U. A. M., and is entitled to death benefits in the sum of two hundred and fifty ($250) dollars, which shall be payable to his legal representative for the benefit of his next of kin, under and in accordance with the provisions of the Constitution and By-laws of this association.

“J. Gr. Ingram, President,

“G-. GL Haizlip, Secretary.

“This certificate ceases to be valid when the holder withdraws from or ceases to fulfill the requirements of the subordinate council, Jr. O. U. A. M. of which he is a member, or when the said council fails to comply with the laws of the association.”

The beneficiary therein died on February 8, 1897, and plaintiff was appointed as his administrator, and demanded payment of the sum specified in the above certificate, which was refused. He was furnished with a statement showing that the deceased owed the subordinate council number 1, of which he was a member, $4.90 dues. The administrator proffered to pay this •sum, which, was refused. On the eleventh day of February, 1897, three days after the death of the intestate, the following notice was received by the administrator through the mail:

“Bowman’s Hall, No. 2, Eleventh and Locust Sts.,

Jan. 25th, 1897.

“Bro. G-. A. Lewis, 302 Market St.

“You are indebted to St. Louis Council No. 1, Junior Order United American Mechanics $4.00 to Jan. 1st, 1897. Unless payment be made prior to the day-of —:— 189 you will be placed on the Honor roll, and in case of sickness or death will not be entitled to benefits. Yours in Y. L. & P.

“A. H. Comeoet,

“Financial Secretary.”

The envelope showed this was posted 9:30 a. m. on February 8, 1897. The laws of the defendant order provided that a certificate like the above is annulled by the suspension of the beneficiary or of the local council of which he is a member. The law of the subordinate order, council number 1, of which the deceased was a member, provided that any of its members who are “13 weeks in arrears for dues, forfeits all the rights and privileges, except that of being admitted into the council chamber during its sessions. On the fourth of January, 1897, deceased was in arrears to his council for $4, or twenty-four weeks dues. He was never formally suspended by his council, nor by the defendant order, nor was his council number 1 suspended by the defendant order. The administrator brought suit before a justice, after an appeal from whose judgment the cause was tried in the circuit court without a jury, and judgment rendered for plaintiff, from which defendant appealed to this court.

No instructions having been asked or given on the submission of the case, the judgment must be affirmed, if the law applicable to any view of the evidence would entitle plaintiff to recover. It has been recently decided by this court that a forfeiture conditioned to take effect upon suspension of a member of a fraternal-beneficial association, does not attach until the member is actually and legally suspended. Such a defense is strictissimi juris not favored by the law, and can only be successfully invoked when every step necessary to create it has been taken with technical accuracy and completeness. Puhr v. Grand Lodge German O. of H. No. 7283, unreported. As it is not claimed by the learned counsel for appellant that the record shows a valid suspension under this rule, there certainly was no error on the part of the trial court in holding that the administrator was not precluded on the ground, of the suspension of the beneficiary before his death.

It is however argued with force and ingenuity that the last clause of the certificate, supra, in express terms provides for' its invalidity in three contingencies. The one insisted upon by appellant being, that it ceases to be valid “when the holder ceases to fulfill the requirements of the subordinate council of which he is a member.” It is urged that this is a self-executing condition upon which the right to the fund mentioned in the certificate turned, and that it happened in this ease because the member was in arrears for dues to his subordinate council, contrary to its laws, for more than thirteen weeks. This law of the subordinate council as to the effect of nonpayment of its dues for thirteen weeks on the part of its members was intended to govern its relations with its members, and the penalty of suspension might have been imposed for noncompliance with its terms; or it might have been waived. In this record there is positive evidence of such waiver in the notice mailed on the day of the death of the member requiring him to pay the dues then in arrears. Upon this evidence the trier of the fact had the right to make a finding of the waiver on the part of the subordinate lodge of this requirement. If he so found, then nothing was left to which the clause of the certificate, under review, could be applied, and the argument of the learned counsel must fail because of a contrary finding of the facts upon which it is based. As the court was at full liberty under the facts in this record to take the view of a waiver on the part of the subordinate council of the delinquency of the deceased in the matter of the payment of dues, its judgment under the law applicable to such finding was correct and will be affirmed.

All concur.