Aрpellees are the beneficiaries named in an insurance policy issued by appellant, a fraternal benefit society, to one Fannie Johnson, and, upon the death of the insured, appellees brought this suit to recover the amount of the insurance. There was a trial before a jury, and from a verdict and judgment in appellee^’ favor is this appeal,
> Liability was denied npon the ground that, by failing to pay the monthly asséssment levied against all members, the policy of Fannie Johnson had lapsed. It is also insisted that, while an attempt was made to reinstate thе insured, the attempt was unsuccessful, for the reason, chiefly, that the insured was in bad health at the time of the reinstatement; a by-law of the order providing that reinstatement would be granted only to members who were in good health at the- time of their application to be reinstated.
The instructions submitted two questions to the jury, the first whether the policy hаd lapsed, the second whether, if the policy had lapsed, the insured was in good health at the time she was reinstаted.
"We- think the testimony warranted the submission of both these questions, and that the jury might have found for appellees on either or -both of these issues.
- A section of the constitution and by-laws .of the society reads as follows: “Any brother (sister) neglecting to pay all arrears to the funds of the colony for two months shall be notified by the secretary, and shall bе suspended by the colonial chancellor in open -meeting, a record of such suspension shall be entеred on the minutes of the colony, and, during such suspension, he (she) shall forfeit all claims to the privileges of the colony, and should he (she) desire to return, he (she) shall pay up all indebtedness and contributions that may have been assеssed on each member in the interval between his (her) suspension and time of return, - and shall stand over one month before he (she) shall be entitled to any benefits.”
It thus appears that mere delinquency in payment of -dues does not аutomatically suspend a delinquent member, but, before the member is suspended, there must be notice of delinquency аnd suspension in open meeting, of Which action a record is to be made on the minutes' of the colony, which we .understand to be the local lodge of which the delinquent was a member.
The testimony fully supports the contention оf appellees that no notice was given or action taken, and the verdict of the jury might therefore be аffirmed on this account.
Appellant insists that this case should be reversed and dismissed upon the authority of the case of Sovereign Camp Woodmen of the World v. Anderson,
It appears, however, from the opinion in that case that the constitution and by-laws provided that the insured should stand suspended upon the nonpayment of dues, and no notice of delinquency or order оf suspension was necessary to make the suspension effective. Here, however, as we have said, the сonstitution and by-laws require notice and an order of suspension.
“Where the mere nonpayment of an assessment does not of itself forfeit the insurance, a clear intention on the part of the. insurer to declare a forfeiture must be shown, or it will be held not to have taken place (Columbus Mut. Life Assn. v. Hanrahan,
It is an undisputed fact that Fannie Johnson became delinquent in the payment of her dues, and it is also undisputed that one of the beneficiaries paid the delinquent assessments. These delinquent dues were forwarded to the head office of the society by the local officer of the сolony to whom the payment was made. It was the duty of the proper officer at the home office to mаke a record showing the reinstatement of any delinquent member who had complied with the by-laws of the society. This notation on the records of the society was not made in the case of Fannie Johnson, for the reason thаt she had not furnished a certificate. showing that she was in good health, and it is insisted that the undisputed testimony shows that the insured wаs not in good health.
In one of the instructions given, the jury were told to find for the defendant (appellant) if they found the insured was not in good health at the time of her application to be reinstated, so that the jury must have found the fact to be that she was in good health, and we are unable to say this finding is contrary to the undisputed evidence or is unsupported by substantial evidence. One of the appellees, a daughter of the insured, testified that her mother was employed as a nurse for a child, and was so engaged until a few days before her death, when she suffered a “strokе,” from which she died.
The verdict returned was for the sum of $300, and it is insisted that, because of the age of the insured, she was entitled, under the by-laws of the society, to recover only one-half that amount. In answer to this insistence it suffices to say that no such question was raised in the motion for a new trial.
We find no error in the record, so the judgment is affirmed.