93 S.E. 8 | S.C. | 1917
Lead Opinion
The opinion of the Court was delivered by
Plaintiff appeals from judgment on verdict directed for defendant in an action on a life insurance policy.
This Court usually declines to enter upon a detailed discussion of the evidence in a case like this, because, as a rule, it subserves no useful purpose, except perhaps to show that it has been carefully reviewed and considered, which is done in every such case, of course, and that should be presumed. But, out of respect to the very earnest contention in argument of the learned counsel for appellant, we state the substance of the material evidence, so that its tendencies may be seen, when it is considered in the light of the controlling provisions of the constitution and by-laws of the order, which have already been stated, and the statute law of this State.
C. M. Allen testified that he was the secretary-treasurer of the subordinate council of which insured was a member during the whole period of his membership, but resigned that
“Charlotte, N. C., Aug. 18, 1912. Friend Allen: Please let me know at Sumter, S. C., 17 South Magnolia St., how much I owe, so I can send you check. With best regards to all the fellows. Sincerely yours, H. C. Sternheimer”— and his reply thereto, to wit: •
“Aug. 24, 1912. Dear Sternheimer: Just back from the North. You are due us $6.50 for dues and assessments. Attend to this for me. Allen.”
On August 26, 1912, he sent Sternheimer a circular letter, which was sent to all members of the council, in which he again called his attention to the fact that he was due the council $6.50. Pie saw Sternheimer in person twice after-wards, and each time, the last being the morning of the day he was injured, reminded him that he was in arrears, and Sternheimer promised each time to send him a check for the amount due, but never did so. After insured had been fatally injured, his brother, Fred Sternheimer, went to Allen; taking with him the assessment cards for assessments 111 and 112, which had been sent to the insured by the supreme secretary, and also the circular letter of August 26th, which had been sent to him by Allen, and offered to pay the arrearages, which Allen declined to receive on the ground that insured had theretofore been injured. Though susceptible of denial there was no denial of this by Fred Sternheimer, and it was admitted by plaintiff’s attorney that the notification card for assessment No. 112 was found among the papers of the insured. Plaintiff, however, testified that she
The principal contention of plaintiff grows out of the receipt, dated December 20, 1911, and the check, dated January 2, 1912, and the inference which she claims the testimony with regard thereto is susceptible of, to wit, that the check may have been given to pay Sternheimer’s dues from July 1, 1912, and later assessments than those mentioned in the receipt, it being further contended that, with respect to the truth of Allen’s testimony, the jury should have been allowed to judge. That might be so, if there -were anything in the evidence tending, either directly or by reasonable inference, to impeach Allen’s testimony, or to warrant a finding against it. But there is not. On the contrary, it is so fully corroborated by the written evidence and all the subsequent transactions as to leave it free from the slightest doubt or suspicion. The receipt specified that it was for dues from January 1 to July 1, 1912, and for assessments 107 and 108. Following that are the receipts- for assess
(1) The constitution and by-laws of the order expressly provide that it shall not constitute waiver. That was a part of the contract, agreed to by the insured and binding upon him and his beneficiary. Section 2755, Civ. Code 1912, provides, with respect to a fraternal benefit association, that:
“No subordinate body or any of its officers or members shall have the power or authority to waive any of the provisions of the laws and constitution of the association, and the same shall be binding upon the association, and each and every member thereof and their beneficiaries.”
(2) There was no evidence tending to show that the. supreme council, or any of its officers, had notice of the custom.
In Vant v. Grand Lodge, 102 S. C. 413, 86 S. E. 677, the statute above quoted was said to have been designed — ■
“To prevent the waiver of violations of the law of such associations by the local bodies, their officers or members, in favor of their own members — as a result of the fraternal*300 feeling or sympathy which the members of such local orders, being more closely associated together, naturally entertain for each other — at the expense and to the detriment of the entire membership of the order.”
And, further, that:
“Notwithstanding the local lodge may be the agent of the grand lodge for some purposes, it is within the power of the legislature to enact that such agent shall not have authority to relinquish the rights of the principal, and it has so enacted in the section quoted. With the wisdom or policy of the enactment, the Court is not concerned. The members of these orders are presumed to know their own laws, as well as those of the State, under which their rights must be determined.”
The facts of this case differentiate it from the case of Crumley v. Sovereign Camp, 102 S. C. 386„ 86 S. E. 954. In that case the clerk of the local camp, who was held to be the agent of the Sovereign Camp, accepted payment of the arrearages and reinstated the member before his death. In this case the secretary-treasurer refused to accept them. Clearly, therefore, there was in this case no waiver by the conduct of the secretary-treasurer in accepting payment of arrearages. To hold that the failure of that officer or of the local council to suspend delinquent members was a waiver would be to abrogate the constitution and by-laws of the order and the statute of the State.
The judgment of this Court is that the judgment of the Circuit Court be affirmed.
Footnote. — As to waiver by officers of subordinate lodge of forfeiture for nonpayment of dues or assessments, see cases of Vant v. Grand Lodge, 102 S. C. 413, 86 S. E. 677; Crumley v. Sovereign Camp, 102 S. C. 386, 86 S. E. 954; Outlaw v. National Council, 107 S. C. 225, 92 S. E. 469, and notes in L. R. A. 1915e, 152.
Dissenting Opinion
also dissenting. I see no evidence of waiver. Hiram Cleveland Sternheimer was insured by the defendant association in a sum not exceeding $6,300, provided he shall sustain, during the continuance of his membership, in Columbia Council No. 294, and while in good standing, bodily injury effected through external, violent' and accidental means, subject to the provisions and requirements of the constitution of the defendant order.
The deceased was, at the time of his death, a member of the Columbia Council, and there was nothing against him on the records of the local or general councils. The deceased had written a letter to the local treasurer to ascertain the amount due so that he could remit the amount. The deceased was a traveling man, and asked that the statement be sent to Sumter so that he might send a check from Sumter. The treasurer was absent, and the notice was not sent to Sumter. On the morning of the accident the local treasurer met the deceased on the streets of Columbia, and says that he urged the deceased to pay the amount due. The only person to whom the payment could have been made was this local treasurer. The local treasurer says that the deceased did not pay the dues, and was at the time of his death in default, and under the constitution of the order the policjr was forfeited. Did the local treasurer tell the truth? There is no presumption of law that he did. State v. Taylor, 57 S. C. 487, 35 S. E. 729, 76 Am. St. Rep. 575. The deceased was not suspended for nonpayment until after his death. The only person who could prove payment was dead. When, therefore, the defendant sets up an affirmative defense of forfeiture, it should be required to prove it by creditable evidence. The credibility^ of the witness was for the jury. They had before them the manner in which the
I think that there should be a new trial.
Concurrence Opinion
concurring in the opinion of the Court. In the original consideration of this case, I concurred in the view of the Chief Justice as to waiver, under the authority of the Crumley case. At that tíme I did not note the differentiation of that case from this, as subsequently pointed out by Mr. Justice Hydrick in an additional paragraph to his opinion. Upon reconsideration of the point involved, in the light of that distinction, I am satisfied that the facts of this case differentiate it from the Crumley case, and for that reason I have withdrawn my concurrence in the opinion of the Chief Justice, and have concurred in the opinion of Mr. Justice Hydrick.
A petition for rehearing having been filed June 21, 1917, the following order was made
The leading opinion in this case disposed of the three issues made by the appeal: (1) The sufficiency of the evidence to carry the issue of the delinquency of insured to the jury. (2) The waiver of the delinquency by defendant. (3) That the action was barred by failure to commence it within six months after the claim was, dis
In view of the fact that Mr. Justice Watts ha.s withdrawn his concurrence in the opinion, of the Chief Justice and concurred in that of Mr. Justice Hydrick, the decision of the point made by the petition becomes unnecessary. It is, therefore, ordered that the judgment of this Court be changed so as to read: The judgment of this Court is that the judgment of the Circuit Court be affirmed. Further ordered that the petition be dismissed.
Dissenting Opinion
dissenting. I think the judgment should be reversed on the ground that practically the same question as to waiver was involved in ■ the case of Crumley v. Sovereign Camp, 102 S. C. 286, 86 S. E. 954, and the conclusions announced in the opinipn of Mr. Justice Hydrick are at variance with the principles therein announced by the majority of the Court.