Schmidt v. Modern Woodmen of America

84 Wis. 101 | Wis. | 1893

Lyox, C. J.

There can be no doubt that at the time of his death Schmidt was in default to the defendant for nonpayment of assessment No. 3, which, by the rules of the defendant fraternity, worked a suspension of any right to benefits under the benefit certificate, unless the defendant or its officers did some act which operates as a waiver of the suspension or forfeiture.. It is claimed on behalf of the plaintiff that sending notice of assessment No. 4, while Schmidt was in default on assessment No. 3, operated as such -waiver. We think otherwise. It was the duty of the clerk, under the rules, to send such notice to every member, and Schmidt remained a member after such default, although not entitled to benefits while it continued. The reason is that, being entitled to a restoration of his insurance if within three months he paid his arrearages and his health remained unimpaired, he was entitled to know how much he owed the defendant on all assessments. lie was then in good health, and it was expected by the clerk that he would relieve himself from his default by paying the assessment. Moreover, Schmidt did nothing, because of such, notice, which subjected him to any expense or inconvenience, or which in any manner changed his rights or his legal relations to the fraternity. Certainly the giving of such notice’ contains no element of a waiver or estoppel, the same not being inconsistent with the right of the defendant to assert the suspension of the benefit certificate because of Schmidt’s default.

It was proved on the trial that a large proportion of assessments were paid after due, and received without objection, and it is argued that a waiver should be implied from this practice; but the difficulty in this position is that no practice is shown of receiving payments of assessments after due in cases where the health of the members paying the same had become impaired. The practice was confined to members in good health, and does not reach the case of Schmidt, who was sick and near death when the attempt was made to pay the assessment.

We see no escape from the conclusion that when Schmidt died the right of his beneficiary in the certificate was suspended because of his default for nonpayment of assessment No. 3 as required by the rule of the fraternity; hence, there being no dispute as to the facts, the court properly directed a verdict for defendant.

By the Court.— Judgment affirmed.