146 Ill. App. 574 | Ill. App. Ct. | 1909
delivered the opinion of the court.
Two contentions are presented by this appeal. Defendant’s contention is that George S. Scheiber was not a member of its society at the time of his death, nor since June, 1906; while plaintiff contends, and the court below held, that the notice of suspension was not sufficient to operate as a forfeiture of all claims under the benefit certificate issued to Scheiber by defendant.
The court held as a proposition of law that the insanity of Scheiber “did not relieve him from a compliance with the rules and regulations of the defendant society, relating to the reinstatement of suspended members.” That such is the law is not disputed. Sec. 295 Niblack on Benefit Societies, 2nd ed.; Noel v. Modern Woodmen, 61 Ill. App. 597; A. O. U. W. v. Jesse, 50 ibid. 101. Neither will insanity excuse the non-payment of dues and assessments so as to operate to keep an insurance certificate in force while the insured is insane. Insanity does not relieve the insured from any obligation imposed by the terms of his insurance certificate, with the sole exception of personal attendance in complying with requisite conditions, that may be done by another for him.
The testimony in the record affirmatively establishes that Scheiber was supended from all benefit under his beneficial certificate for non-payment of the June, 1906, monthly payment, and that such suspension was'" brought about in the manner provided by the constitution and by-laws of the order, which constitution and by-laws formed a part of the terms and conditions under which the certificate was issued to Scheiber. By the express terms of the certificate, as well as the constitution and by-laws of the order, which were also made a part of the conditions of the certificate, a suspension for non-payment of monthly payments or any other infraction of the conditions upon which the certificate was issued, could be brought about without notice. Notice of any kind or character was by the terms of the contract dispensed with. The constitution and by-laws of the order were binding alike upon all the parties to the benefit certificate. Defendant and the member and all those claiming under him cannot escape the binding force of their contract, for in faith of its conditions it was made and accepted. No officer of defendant had the power or authority to waive the performance of any of its binding terms. It is clear • that no action on the part of defendant or its officers can be construed to have caused any misunderstanding on the part of plaintiff or Scheiber (if he was able to understand at all, and if by reason of his lunacy he was unable so to do, it is his and plaintiff’s misfortune, from the results of which the law will not excuse him) as to Scheiber’s being suspended for the non-payment of the June 1906 payment. By the testimony of plaintiff she concedes she had notice of her husband’s suspension from the accountant of the local circle in a written communication of July 6, 1906, in response to which she endeavored to procure a reinstatement. The letter, the reinstatement form and the receipt for the money which she paid the local accountant in an effort to procure a reinstatement and offered by her in evidence, all conclusively show that the suspension was complete, and that there could be no reinstatement except on compliance by Scheiber with the constitution and by-laws of the order relating thereto. The presumption that any rule was relaxed or held in abeyance is rebutted by plaintiff’s own proof. From the inception to the denouement defendant proceeded in all its actions in strict compliance with the constitution and by-laws and the terms of the. contract, which were binding upon all the parties to it. It would seem that all effort to reinstate Scheiber was abandoned after July 9,1906, for nothing further was done by Scheiber or by any one for bim until after his death. Mo attempt was made to pay either the August, September or October monthly payments, from which admitted fact it seems illogical to contend that plaintiff believed her husband’s certificate had been reinstated, for from her own evidence she must be presumed to have known that suspension would again occur for failure to make these monthly payments within the time agreed. Mor is it pretended that plaintiff was told anything or given any information or made any promise by defendant or any of its officers which would have raised any assumption in her mind that the succeeding payments would be dispensed with. Mor has plaintiff given any excuse for not notifying defendant that her husband had been adjudged to be insane; for had she communicated this fact to defendant, the matter of reinstatement might have been arranged, if defendant had the power to arrange that matter without the personal attention of plaintiff’s insane husband. As she produced upon the trial the form of reinstatement, letter and receipt sent by Bothschild, the accountant, to Scheiber, it must be assumed as proven that they reached Scheiber’s address in dne course of mail. It has been held that the receipt of an application for reinstatement by a delinquent member of a fraternal benefit society establishes knowledge of such member’s suspension, and that such suspension was lawfully brought about. Grand Lodge v. Cressey, 47 Ill. App. 616; Hansen v. Grand Lodge, 140 Ill. 301. Such suspended member can only' be reinstated in accordance with the laws and constitution of the society relating to reinstatement. National Council v. Dillon, 212 Ill. 325. The payment of the June and July payments and reinstatement fee, and their receipt by the local accountant, in no way had the effect of reinstating Scheiber or of relieving him from doing those things made necessary by the rules of the order as prerequisite to reinstatement. Neither did the receipt of the money operate as a waiver by the defendant of the necessity of Scheiber complying with the conditions established for reinstating a suspended member. Modern Woodmen of America v. Hicks, 109 Ill. App. 32; Northwestern Life Ins. Co. v. Amerman, 119 Ill. 329; McLaughlin v. Supreme Council, 184 Mass. 298.
While no notice of suspension or non-payment of any moneys due or assessed was required to be given members, yet by the custom and practice of defendant a notice of dues and payments was printed each month in the official organ of the society, the “Protected Home Circle G-azette.” The June 1906 number of this paper contained a notice to all members that their monthly payments and dues for June, 1906, were due and must be paid to the accountant of the Circle before the last day of the month. In the list of names in this notice Scheiber’s appeared. A copy of this Gazette, it was provided, should be sent to all members, although no specific date in the month on which the paper should be sent was provided for. As will be seen from the recitation of fact preceding this opinion, a copy of the June paper was sent to Scheiber, directed to him at his business address, about the sending of which there is no contradiction. Lacking any designated time when such paper should be sent to the members, the law required that the same should be mailed within a reasonable time. The fourth day of the month of the paper’s publication fulfils such requirement of the law. It was therefore sent within a reasonable time. Hamilton v. Scully, 118 Ill. 192. If the contention that Scheiber was entitled to notice of the payment due for June was tenable (which we do not think it is), then the mailing of the defendant’s paper containing the notice of payments due for June, 1906, was sufficient and is binding as notice to Scheiber of the amount due, for a failure to pay which he was lawfully suspended.
"When Scheiber died he was not a member of defendant society; he had been lawfully suspended from membership for failure to make the June, 1906, payment; his membership certificate then became forfeited, and plaintiff has no right or claim thereunder.
The judgment of the Municipal Court is erroneous, and it is reversed, and as plaintiff has no cause of action against defendant in virtue of the membership certificate in suit, the cause will not be remanded.
Reversed.