95 Mo. App. 233 | Mo. Ct. App. | 1902
The plaintiff, as administrator of the estate of Tim Brosnahan, deceased, brought this action upon a certificate of insurance issued to said Brosnahan on the twenty-sixth day of April, 1882. The agreement was to pay to any beneficiary thereafter designated by the insured, of to his legal estate on proof of his death, he being in good standing in the order, the sum of two thousand dollars. There is a proviso, however, that the assessment per capita, according to the law of the order, shall be the amount that the beneficiaries therein shall be entitled to, if such membership shall' be less than two thousand, which sum shall be in full of any and all claims against said supreme council for any cause whatever. By the
Sáid Brosnahan died on the fifth day of April, 1899. Due proof of loss was made. The defendant seeks to avoid payment on the ground that the deceased stood suspended at the date of his death. He belonged to what was denominated Branch 562 of the order, and it is alleged that he was suspended on the twenty-seventh day of March, 1899^ for non-payment of dues, and that said suspension was made by said Branch 562 and the acting president thereof for the non-payment of two assessments designated as numbers 650 and 651, each for the sum of eighty cents.
Under the by-laws of the order, “any member who is in arrears for dues to the branch for six months or for supreme or state tax for sixty days, or when he fails to pay his assessments for which he is liable . . . he shall be suspended.” It was not disputed but what the insured, at the date of his death, was in default for said assessments numbered 650 and 651, and that on the said twenty-seventh day of March, 1899, the branch of which deceased was a member undertook to suspend him, but plaintiff denies that said suspension was lawful, in that the said branch failed to comply with defendant’s by-law_ regulating the suspension of members for non-payment of dues. Said by-law provides that any member who shall fail to pay such assessment, as aforesaid, shall be sus
The defendant on the trial was permitted, against the objection of the plaintiff to prove that the. acting president, after said motion was carried, declared that the deceased was suspended on the two assessments-mentioned. No record, however, was made of such action of the president. So far as the action of the branch was concerned, it was of no effect, for it had no power to suspend a member for any cause except for non-payment of dues, and it is conceded that the motion for his suspension, by its terms, did not include dues. But there was much evidence introduced by defendant to show, from defendant’s account with the order, that it must have included such dues. However that may be, it was immaterial, as will be shown hereafter.
It is a question whether the mere declaration of the president of a branch of the order that a member stands suspended, without any entry on the minutes of the branch to that effect, is valid, and whether it was within the power of either the branch, the acting president, or of both combined, to suspend a member without notice to him and granting him the right to be heard. The act of suspension is one of great importance to the member, for it has the effect not only of depriving him, as such, of the fraternal benefits of the order, but it operates as a forfeiture of his certificate
We hold that before the deceased could have been suspended for non-payment of dues, he was entitled to notice and the right to be heard. He might have been able to have shown that the assessments had been paid but credit had not been given, or, that as his "branch had been carrying him, he was relying upon it to do so as to the two assessments in question; either of which would have been a good defense and prevented a forfeiture. Puhr v. Grand Lodge, 77 Mo. App. 47. “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 invoked when every step necessary to create it has been taken with technical accuracy and completeness. ’ Lewis v. Benefit Ass’n, 77 Mo. App. 586.
It is true the by-laws of the defendant, in evidence, do not provide for notice to a member of the intended suspension, but the law steps in and supplies the omission, and requires of the association the duty of notifying such member of the time when and the place where the action is to be taken, so that he may show cause If he has any, why his privileges and his property rights shall not be forfeited. And further, in a proceeding of so much importance, the action of the presi
The defendant contends that under the pleadings and the evidence the court committed error in' not giving its instruction number one, that the verdict of the jury should be for defendant. This contention is founded on a condition in the application of the deceased for insurance that, “if there shall be any omission or neglect to pay any assessments, fines or dues, on or before the days on which the said assessments shall fall due, that then . . . the certificate of membership which may be issued hereon, shall be void, and all moneys which may have been paid on account of such certificate of membership shall be forfeited.” etc. This question was raised in Lewis v. Benefit Ass ’n, supra, and Judge Bond, who delivered the opinion of the court, said: “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 subordnate 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 case 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 non-payment of its dues for thirteen weeks on the
In this case it is conceded that it had been the custom of the branch in question to waive payment for the dues by deceased. The amount then due is indisputable evidence that such was the case. There seems, to have been a tacit agreement between the deceased and said branch that it would advance his payments for him to the supreme council. In fact, under- the defendant’s by-laws, any branch allowing delinquent members to remain without suspension, was required to pay such assessments out of its general funds. In McMahon v. Maccabees, it was held that, “a member of an assessment insurance company has the right to. look to the general conduct of the business of the company in reference to the collection of its assessments according to its prescribed rules, and particularly as that conduct affects Jiimself. And if the company, by its conduct, has induced him to fall into the habit of delaying the payment beyond the time which the company’s law calls the day of suspension, it can not, without warning to him of a change in its business conduct, inflict the penalty of suspension on him. ’ ’
We hold, therefore, that the deceased was not suspended ipso facto by the terms of the contract, and that he could not have been suspended without notice.
Under the law applicable to the pleading and the facts, the finding and judgment being for the right-party, it should be affirmed notwithstanding any alleged errors in the giving and refusing instructions. The cause is affirmed.
