77 Mo. App. 47 | Mo. Ct. App. | 1898
The G-erman Order of Harugari is a national benevolent organization, with state organizations, called respectively “the G-rand Lodge of the German Order of Harugari” of the state where established. The state lodges are incorporated in the various states, and the defendant is the incorporated Grand Lodge for
“He paid his dues and assessments for the months of January, February, March and April, 1896, and prior thereto, but paid no dues and assessments for the months of May, June and July, 1896, and died August 7, 1896.
“The German Order of Harugari of the United States is a national organization, having in various states a state organization called the ‘Grand Lodge of the German Order of Harugari.’ These state lodges are incorporated in the various states, and the defendant is an incorporated Grand Lodge for the state of Missouri, whose constitution is prescribed by the national organization. Under this state lodge are subordinate lodges, which are not incorporated, and to one of these lodges, called Goethe Lodge number 158, German Order of Harugari, the said Henry Puhr belonged. The Grand Lodge was composed of not less than five members, known as Ex-Bardes, who are members of subordinate lodges, and among the officers of said lodge was a Grand Treasurer. The Grand Lodge instituted what is called a mortuary fund, under power given it by section 1, article 3 of the constitution for subordinate lodges, prescribed by the Grand Lodge of the United States, said State Grand Lodge prescribed the statutes or laws governing it, its purposes, who should participate in it, the amount to be paid on the death of a member of a lodge, the action to be taken by subordinate lodges on failure of a member' to pay his assessment, and assumed exclusive jurisdiction in the “conduct of the mortuary fund and the administration of all business appertaining thereto.”
Assessments were called by the Grand Lodge for the months of May, June and July, and these calls were published in the usual manner in the official organ, and read out in the subordinate lodges, including the lodge of which Henry Puhr was a member.
On May 1, 1896, the committee of the mortuary fund, consisting of the grand secretary, grand bards and grand treasurer, in order to pay death benefits due, levied two assessments of $1 each against each member of the order, and notified Goethe Lodge thereof by means of the official organ. A like condition existed on the first days of June and July, 1896, and two assessments were levied in like manner and like notices given to Goethe Lodge and were received by said lodge. On May 1, 1896, said lodge notified each of its members to pay these assessments and fifty cents monthly dues. Similar notices were given to pay the assessments levied in June and July and the dues for those months. This made the sum of $2.50, payable at the last meetings in May, June and July. Henry Puhr paid none of these assessments.
James Burbach, who was the financial secretary of the lodge, sent to said Puhr in the latter part of June, 1896, a registered letter to the effect that he owed two months’ dues, and assessments and that unless they were paid pursuant to the provisions of paragraph 4 of the mortuary fund, his name would be stricken from the list of members. At the meeting held on the ninth day of July, 1896, “the brother accountant was ordered to notify the three brothers Eckoff, Hurrs and Puhr,
As above stated, Puhr died on August 7, 1896. The first meeting of his lodge in August was held August 13, 1896. At this meeting the secretary of the lodge made the following addendum to the minutes of July 23,1896: “As the brothers all know * * * and Henry Puhr were notified by registered letter on account of nonpayment of their dues and assessments for three months, but did not pay up to the last of July. Consequently they are, according to the laws, statutes and by-laws of the mortuary benefit fund, stricken from the roll of membership of Goethe Lodge No. 158, German Order of Harguari on account of non-payment of their dues and assessments, by order of the lodge of the above date.
“in F. L. & H.
“(Signed) Mich Jacoby, O. B.
“Geo. F. Ruep, Secy.”
Again in the ledger there is written at the bottom of Henry Puhr’s account the following:
“Stricken from the list of Membership July 31st, 1896. Died August 7th, 1896.” This was evidently written after the death of said Puhr.
There is also evidence uncontradicted that Puhr stated to members of the order who told him that he was delinquent that he did not care to belong to the lodge, or did not want to belong to it, and that he threw the notice which the lodge sent to him of his
Then follows the constitution and by-laws of the defendant and of Goethe Lodge, which need not be set out in full in this opinion. In disposing of the various exceptions we will call attention to portions that we deem especially pertinent.
The conclusions of the circuit judge upon the foregoing facts were as follows :
“I am of the opinion that under the foregoing constitution and by-laws, some action on the part of Goethe Lodge judicially declaring a forfeiture was necessary to terminate Puhr’s membership. By the great weight of authority notice to the member and a declaration of forfeiture by the lodge, is necessary to terminate the “good standing” of a delinquent member. Niblack Ben. Societies, p. 541, 542.
“Notice of intention to strike his name from the list was given, but no action was taken thereon by the lodge prior to his death. Hence, I find that Henry Puhr, was at the time of his death a member in good
“Upon a fair construction of the laws of this order, I am of the opinion that the individual members bound themselves to pay lodge dues and assessments levied by the defendant Grand Lodge on the respective subordinate lodges, and each lodge bound .itself to pay the assessments thus levied to the Grand Lodge. The Grand Lodge determined the quota contribution due from each lodge, and by section six of the mortuary fund obligated itself to pay to the widow of a deceased member the sum of $700.
“I can not assent to the position taken by counsel for the defendant that under section two of the mortuary fund, the promise in this case was that of the lodges collectively and not of the Grand Lodge.
“I am clearly of the opinion that construing the laws of this order in such a manner as to effectuate their intent and to harmonize them as a whole, the defendant in this case is liable.
“H. D. Wood, Circuit Judge.”
Thereupon judgment was entered for the plaintiff for the full amount, and the defendant has appealed.
The first contention of the appellant is that under the constitution and by-laws of the defendant and of Goethe Lodge the defendant is merely an intermediary or disburser of the mortuary fund as agent of the subordinate lodges, and that if there is any liability at all it is against the latter. Counsel rely on Weyrich v. Grand Lodge, 47 Mo. App. 301, as decisive of the question. The sections of the constitution and by-laws bearing on the question are set out below. Section two, article three of the laws of the mortuary fund reads: “All the lodges of the German Order of Harugari in the state of Missouri have jointly bound themselves upon the death of a brother in. good standing to pay the sum
“Section 1. Purpose. — The Mortuary Fund of the D. O. H. of the State of Missouri is founded chiefly to protect the families and relatives of deceased brothers of the D. O. H., who are thrown upon his support, from want after his decease, and shall make use of the payable Mortuary Fund moneys for their support. Only such debts as are caused for the burying of the deceased brother, and such bank dues as provided by section 4, may be paid from this money. Other creditors and administrators have no claims thereto.”
“Sec. 3. Entrance Money. — Every subordinate lodge is bound at the acceptance of candidates to take up the following entrance money for the Reserve Fund of the Mortuary Fund. That is to say, from candidates at the age from
35 years and not yet 36 .........................................$1 00
36-40 years and not yet 41 ................................2 00
41-45 years and not yet 46 .................................... 3 00
46 years and not yet 47.......................................... 4 00
47 years and not yet 48......................................... 5 00
48 years and not yet 49 ......................................... 6 00
49 years and not yet 50 ............ 7 00
“Sec. 4. Contributions. — The contributions for the death fund moneys of $700 which are to be paid, are not raised for each death separately, but through assessments, in a sum in such case, of one dollar per member, in advance, by the Grand Secretary from all the lodges in the state of Missouri, and a further assessment is called in, when the sum on hand no longer
“All assessments for the Mortuary Fund are due in the last meeting of each month.”
“Members who have not paid their assessments at the legal time, shall be notified by the Grand Secretary or accountant of the lodge, of the date of the lodge session, that in case they do not pay their assessments in arrears, in course of the next following month, they will in the last meeting in this month, be stricken from the membership list of the Mortuary Fund.”
“Every.Lodge has the selection of the way seeming to it most safe, of forwarding its contribution quota and bears the risk of the forwarding.”
“Sec. 5. Investiture with Right oe Recovery. The hereinafter designated heirs of a deceased brother are entitled to the $700 death moneys only in case the lodge of such brother at the time of his decease has not been excluded on account of arrearages in contributions, or in consequence of a judgment, and the brother himself at his death was a member in good standing according to the by-laws and books of.his lodge.
“Expulsion of a brother by his subordinate lodge results in a like expulsion of said brother from the Mortuary Fund.”
“Sec. 6. At the death of a brother of a lodge of the state of Missouri German Order of Harugari, if the conditions put in the foregoing section 5 are fulfilled, there shall be paid out by the Grand Lodge of the state of Missouri the sum of $700 in lawful money of the United States, in the following manner, etc.”
“Sec. 9. Management. — The conduct of the mortuary fund and administration of all business thereto appertaining stands under the executive juris
“The Grand Secretary must conduct the correspondence, as well as the necessary books and register, make bills for contributions, collect the same and remit to the Grand Treasurer; also prepare monthly reports.” “The Grand Treasurer must effect the payment out of the death moneys and preserve receipts, proofs and documents showing legitimacy.
“The Deputy Grand Bard and Grand Overseer constitute the Finance Committee.
“Immediately after receiving the monthly reports of the subordinate lodges the appropriate monthly reports from the death fund committee are to be prepared. The contributions quota for each lodge is to be determined and each lodge informed thereof. An exact report must be submitted by the Mortuary Fund Committee to the Grand Lodge in its session in the month of August of each year and the members of the Mortuary Fund Committee must turn over to their successors moneys, books and letters.”
“All surplus moneys out of the Mortuary Fund turned over by the Grand Treasurer to the Board of Management of the Grand Lodge are to be invested by the latter to the best interests of the Order, in the name of the Grand Lodge, and report must be made to the “annualsession.”
“Appeals from resolutions and decisions of the Mortuary Fund Committee must be made to the Grand
“Sec. 10. Changes. — Changes of these Mortuary Fund Laws can only legally take place in the general session of the Grand Lodge in August of each year by two thirds majority of the representatives present. All resolutions which were formerly adopted by the Grand Lodge of the state of Missouri German Order of Harugari with reference to this Mortuary Fund which stand in conflict with these laws are herewith repealed.”
We think that there is a clear distinction between the case at bar and the Weyrich case, supra. In the case we have here there is a direct promise of the defendant to pay (section 6, supra). In the Weyrich case there was no such promise, either express or implied. In the Weyrich case the existing local lodges of the order created the defendant (the Grand Lodge), and they evidently did this merely for the purpose of having some central body to act as their disbursing agent in the payment of death losses. The amounts of the benefits to be paid, and the manner of the collection of assessments were left entirely- with the local lodges. In the present case the Grand Lodge is the creator, and the subordinate lodges are its creatures. The latter are merely parts of the machinery through whiqh the money for the Mortuary Fund is collected. This fund is entirely under the control of the Grand Lodge. It determines the amounts of the monthly collections, and the quota of each subordinate lodge is fixed by it. In discharge of their obligations as assumed under section 2, article 3, supra, the local lodges make and collect from its members the necessary assessments to meet the demand of the Grand Lodge. We are of the opinion that the conclusion reached by the circuit court as to this question was right.
Lastly it is urged that Puhr was not a member good standing at the time of his death. What is meant by the term “good standing”. Mr. Bacon in his work thus defines it: “A mi0mker 0f an order at the time of his death in arrears for dues and assessments, the time for collection of which had fully expired, is by reason of these facts not in good standing within the meaning of a benefit certificate requiring the member to be in good standing in the order at the time of his death, to entitle the beneficiary to recover.” Bacon on Ben. Soc., sec. 414, page 821. Under this rule a mere delinquency in the payment of dues does not defeat the good standing of the member. So long as the member has the right to pay and the lodge forbears to take action, he remains in good standing. As Groethe Lodge at its July meeting failed to direct its officers, in making their report to the Grrand Lodge, to strike Puhr’s name from the list of members, his right to pay the delinquent dues and assessments existed at the time of his death. Had he lived until the August meeting without having paid, he would have stood expelled under section 8, article 4, supra, of the by-laws of the lodge. In reference to some societies the decisions hold that “good standing” in a society not only implies that a party is a member of the society, but that he has a good reputation therein. This definition has application to societies organized for the propagation of a particular virtue, such as temperance. For a member of such society to drink intoxicating liquors would be a reproach and scandal on the society, and would be such a moral delinquency as to necessarily impair his good reputation in the society. A mere
Our conclusion is that the case has been properly tried, and the judgment will therefore be affirmed.