104 Me. 355 | Me. | 1908
The defendant corporation is a fraternal beneficiary organization, having a lodge system with ritualistic ceremonies of initiation of members, and carried on for the sole benefit of members and their beneficiaries, and not for profit. It is the supreme body, having under it grand commanderies and subordinate commanderies. It provides under its charter and laws, by assessments on members, a Benefit Fund, out of which death benefits are paid to the designated beneficiaries of deceased members. The assessments are collected and forwarded to the supreme treasury by means of the machinery of the subordinate commanderies. Membership is acquired by making application to a subordinate commandery and pursuing the steps prescribed by the laws of the society. These steps, so far as material to this case, are as follows-: The application is balloted upon. If the applicant is "elected to receive the degree,” he is then examined in respect to his physical condition by the subordinate commandery medical examiner. If the result of this examination is favorable, he is initiated into the commandery with ritualistic ceremonies, having first paid certain fees and dues, including one assessment to the Benefit Fund. The application and medical examination are then forwarded to the supreme medical director of the organization for his approval or disapproval. If he approves, the application is returned to the subordinate commandery by him, and is sent by the proper officer to the Supreme Keeper of Records, as the supreme secretary is styled, and the initial assessment for the Benefit Fund paid by the applicant before initiation together with assessments paid by members generally on the first day of the following month is forwarded to the supreme treasurer on or before the tenth day of that month.
The laws of the organization expressly provide, however, that "no rights of membership in the Order shall accrue thereby,” that is, by initiation, "nor shall the applicant or his beneficiary possess any claim on the Benefit Fund, nor shall a benefit certificate be issued to the applicant until said application has been approved by
One Hollis L. Patterson on September 26, 1906, made application for membership in Ivanhoe Commandery, one of the defendant’s subordinate commanderies, located at Rockland, and named his mother, the plaintiff in this action, as the beneficiary of his death benefit. He was elected. He successfully passed the required medical examination by the local medical examiner. He paid the regular monthly assessment of forty-one cents, and commandery dues amounting to seventy-five cents, and on September 27 was duly initiated in Ivanhoe Commandery. His application and medical examination were forwarded to the Supreme Medical Director who on the next day, September 28, approved the same. But earlier in the same day Patterson was accidentally killed. Nothing further seems to have been done by anyone. Patterson was not reported to the Supreme officers as having been admitted or initiated. No benefit certificate was ever issued. The assessment of forty-one cents which Patterson paid was not, as we infer from the agreed statement, reported or forwarded to the supreme treasurer, but remained in the hands of the subordinate commandery. It has never been returned or tendered.
This action is brought to recover five hundred dollars, the amount of death benefit for which application was made. It is resisted on the ground that Patterson never became a beneficial member of the Order, that the terms and conditions of membership which were necessary to be performed before he would be a beneficial member were not all performed in his lifetime, and that at the time of his death there was no contractual liability on the part of the defendant.
We think this contention must be sustained. The defendant, if liable at all must be liable as upon a contract, — a contract of insurance. The terms and conditions of the contracts of this defendant with its members are to be found, in part at least, in its constitution and laws. It had a right to impose terms and conditions upon those
Patterson died before his application was so approved. The intended contract was not completed in his lifetime. At the time he died the defendant was under no liability to his beneficiary. Cases in point are Matkin v. Sup. Lodge K. of H., 82 Tex. 301; 27 Am. St. Rep. 886; Bruner v. Brotherhood of American Yeomen (Iowa), 111 N. W. 977; Sup. Lodge Knights and Ladies of Honor v. Johnson (Ark.), 99 S. W. 834.
But the plaintiff contends that the right to make this defense has been waived or lost on account of the failure to return or tender back the forty-one cents which was paid as an assessment for the Benefit Fund. We do not think so. There are many cases which hold that when a forfeiture has arisen by reason of the failure of the member to pay an assessment within the prescribed time, the receipt and retention of the assessment afterwards, by the proper officer, is a waiver of the forfeiture. But here there was no forfeiture by a member. Patterson had no beneficial interest or right to be forfeited. He never was a beneficial member. And after his death, we do not think it lay in the power of any of the defendant’s officers by any acts to make him a member in effect. Swett v. Citizens’ Mut. Rel. Soc., 78 Maine, 541. If not, how could that result be effected by failure to act? Certainly it could not. As
Judgment for the defendant.