44 Wash. 230 | Wash. | 1906
Action by the plaintiff, Lulu L. Sheridan, by Tillie Hewitt, her guardian, upon a benefit certificate issued by the defendant, to one Hiram D. Sheridan, now deceased.
The defendant claims that due notice of assessment No. 1, for January, 1902, was given to the assured by the clerk of the head camp, in the manner provided by the contract; that he failed to pay the same and became ipso facto suspended on February 2, 1902; that he was never reinstated; that no notice was given the defendant of the insanity of the insured prior to his suspension; that insanity is no excuse for nonpayment of assessments; and that the alleged notice of insanity and the clerk’s alleged promise to inform Mrs. Hewitt of nonpayment, conferred no rights upon the plaintiff, nor
The appellant, with other assignments of error, contends that the trial court erred (1) in denying its motion for a nonsuit, and (2) in denying its motion for a directed verdict. The pleadings and evidence show, that the appellant is a fraternal mutual benefit- association, organized under the laws of Illinois, with its head camp at Rock Island, and with numerous local camps throughout Illinois and other states; that it is organized on the lodge plan, having a ritualistic form of work and also certain fraternal, social and indemnity features. Hiram D. Sheridan was a member of the local camp at Libby, .Montana. By the terms of his certificate, the ap-. pellant agreed in case of his death to pay to the respondent as beneficiary the sum of $2,000, subject to certain conditions therein stated, one of which was that, if assessments against the assured should not be paid to the clerk of the local camp on or before the first of the month following the date of notice of the same, then the certificate should be null and void.
The, by-laws provided, that every beneficial member who after notice should fail to pay any assessment on or before the first of the following month, or who should fail to pay' dues in advance on or before the first day of April, July, October, or January, should ipso facto become suspended; that during such suspension his benefit certificate should be absolutely null and void; that a suspended member might be reinstated within sixty days upon payment of all arrearages, together with all fines, dues and assessments maturing subse
No payment of any assessments or dues maturing after December 1, 1901, was made by Sheridan, or any other person, at any time prior to his death in June, 1904, nor were any tendered, except on the one occasion hereinafter mentioned. The respondent’s witnesses testified that in December, 1901, Mrs. Hewitt wrote a letter to the clerk of the local camp advising him of the insanity of Sheridan, and requesting him to notify her so that she might pay the assessments in the event of the failure of Sheridan to do so; that the clerk, answering this letter, stated the assessments were then paid in advance, and that he would keep her notified; that by reason of the failure of the clerk to give her any further notice, she failed to pay the assessment levied in January,
“I have been away a little while and was not here when Lulu, my daughter, got your letter or would have seen to it at once as Sheridan was here then but he is not here now and the last time I saw him, about three weeks ago, he was well and walking down the street, but as he has left town I cannot get him to sign the paper but will inclose. $3.60 to pay the dues to May 1st, and if it is not all right you can return the money order to me, . . . the reason I wish to keep up these dues is he is a very reckless man now in some ways and as I wrote you a year ago that I would keep up these dues if you would inform me when he failed to pay. ... I hope you will look on my letter with some-favor and make this all right, that is, if his insurance still runs to Lulu, his daughter.”
The original of the last-mentioned letter was produced at the trial but none of the others mentioned by respondent’s witnesses could be found. No further attempt at payment of either assessments or dues was made by the respondent or her mother, nor is it claimed that any further correspondence took place. The $3.60 remitted by Mrs. Hewitt was returned by the clerk, he .refusing to receive the same without the health certificate. The clerk denies receiving any letter from Mrs. Hewitt in December, 1901, and also denies that he wrote her the letter which she says she received from him during the same month, in which he promised to notify her of the assessments when levied. As the jury found a verdict in favor of the respondent, they necessarily believed the statements of her witnesses, and we must accept the same as true.
The contention of the respondent is, that the appellant had no right to suspend Sheridan for nonpayment of dues or
We think these contentions should be sustained upon the authority of Modern Woodmen of America v. Tevis, 54 C. C. A. 293, 117 Fed. 309, and cases therein cited. In the Tevis case the United States circuit court of appeals construed and passed upon the legal effect of the identical by-laws now before us, and we fully indorse and adopt its reasoning as controlling in this case, this being the sole instance in which it is shown that the clerk in his course of dealing with members or beneficiaries violated any by-law of the society, and it not appearing that his action was the result of any customary course of procedure adopted by him towards members or beneficiaries. A single act of transgression cannot arise to the dignity of a custom so as to be impliedly ratified by the appellant. Had it been pleaded and shown that the clerk habitually violated appellant’s by-laws in this or kindred matters, a different rule might possibly be applied in determining the relative rights of the parties; but that question is not now before us, as no showing of any such state of facts has been made.
The appellant further contends that the insanity of the assured is no excuse for nonpayment under the contract, and
The respondent most vigorously contends that, as she was misled by the act of the clerk of the local camp, the appellant had no right to forfeit the certificate, and that it should be estopped from pleading such forfeiture. Were we to concede that the clerk had power to bind the appellant when he agreed to notify respondent’s mother of assessments as levied, and should we also hold that the beneficiary was entitled to notice of assessments by reason of the insanity of the insured, of which appellant was advised, still we think no recovery can be permitted herein, as the respondent and her mother, who was acting in her behalf, must be held by their subsequent conduct, covering a period of more than two years, to have acquiesced in such alleged irregular forfeiture of the certificate. At all times after March 8, 1902, they failed to make any further tender of dues or assessments, nor did they take any steps to secure relief from such suspension and forfeiture.
In Lavin v. Grand Lodge, 104 Mo. App. 1, 78 S. W. 325, cited by respondent, it was contended that the wife of the beneficiary had twice tendered payment of assessments which were due, but that the clerk of the local lodge had declined to accept the same for the reason that, as he alleged, the tender was insufficient in amount. No further payments were made or tendered during the life of the assured, who died some six months later. On trial, judgment was entered in favor of the
The motion for a directed verdict in favor of the appellant should have been granted, and the trial court erred in denying the same. It is ordered that the judgment of the superior court be reversed, and that the cause be remanded with instructions to dismiss the action.
Mount, C. J., Root, Fullerton, Hadley, Dunbar, and Rudkin, JJ., concur.