Stidle v. Twin City Council, No. 121

Opinion by Porter, J., This suit is brought by Bertha Stidle both as widow and administratrix of the estate of Leonard Stidle, deceased. The defendant contends, first, that the plaintiff is not entitled to recover, because she is not the heir of the insured. The bylaws of the association provide that “ on the death of a brother entitled to benefits, $400 shall be paid to his heirs out of which the funeral expenses shall be defrayed.” If this provision stood alone it might be necessary to consider whether the term “heirs ” was used with such strict legal accuracy and purpose as to exclude the widow of the insured. There is, however, a provision in the constitution of the association, which not only throws light upon the meaning of the by-law, but controls its application. Article X, section 3, provides that “ after the initiation of a member entitled to weekly benefits, in case of his death, the sum of not less than twenty dollars shall be appropriated toward defraying the funeral expenses of the deceased brother and the councillor shall report to council the disposition of the fund. The balance if any shall be paid the widow or dependent relative of the deceased.” It thus appears that by the fundamental law of the association “ the widow ” of the insured was recognized in terms as the beneficiary under the agreement of the association. There was no error committed by the court below in refusing to direct a verdict for defendant on the ground that the plaintiff had no standing to bring the suit. The fact that she sued both as widow and administratrix does not affect this conclusion. The defendant did not require her to elect in which capacity she claimed. Having recovered a verdict we will not disturb it, if it be sustainable upon her rights in either capacity. The second contention of the defendant association is that the insured was, at the time of his death, in default for nonpayment-of dues and that, therefore, the plaintiff was not entitled [182] to recover the- funeral benefits. The section of the constitution under which this question arises is as follows : “Section 4. Any brother suffering himself to become indebted to the council for weekly dues for thirteen weeks shall not be entitled to benefits until four weeks after all such arrearages have been paid in full to time of settlement and for twenty-six weeks, for six weeks and for thirty-nine weeks, for eight weeks and for fifty-two weeks or over, for thirteen weeks after all such arrearages have been paid.” In order to show that the insured was in default under this clause at the time of his death, the defendant association offered in evidence their account with him. In this account he was charged with three funeral assessments, ’ by including which the deceased was claimed to be in default when he died. If these items were not properly included the account shows that the deceased was not in default. He paid on April 25, 1895, the sum of $8.00 by which he discharged all of his dues-charged to that date and a balance over of $3.31. He was, according to defendant’s account, in arrears for dues $4.69. This represents about thirty-six weeks’ dues at thirteen cents per week. On April 25, 1895, then, he reinstated himself but under the above clause he was not entitled to benefits for six weeks thereafter, namely until June 6, 1895. He died June 12. If, however, the payment of the $8.00 on April 25 relates back to March 28, when the last dues in arrear were charged against him, he was reinstated as of March 28, eleven weeks before his death. There is some ground for such a claim inasmuch as while the dues are called “ weekly dues ” they are charged and treated as quarterly dues. Therefore, no dues were-in a sense due until three months from March 28. We are clear that if the items of funeral assessments are to be excluded from the account, the insured was not in default at the ■ time of his death. The account of the defendant association charges the insured (in addition to the so-called weekly dues charged quarterly) with three items of $1.00 each for three funeral assessments. Such assessments stand on a somewhat different footing from dues. It was held by this court in Crumpton v. Pittsburg Council, etc., 1 Pa. Superior Ct. 613, that the failure to pay funeral assessments is not to be made the basis of a forfeiture, in the absence of notice brought home to the member, and that payment [183] by him of a sum of money in excess of liabilities to the association will be credited to his dues and cannot be applied to death assessments, of which he had no notice, so as to place him in arrears for his weekly dues. The evidence that notices of the funeral assessments were given to the insured, in the case before us,'is far from conclusive. The burden of proof was upon the defendant. If the notices were properly given, the three assessments were probably proper charges in the account. If not, their presence in the account should not be permitted to work a forfeiture. This question of notice was one of fact for the jury on the evidence submitted. Their verdict has determined that the notices were not given. Therefore, the three items of funeral assessments being out of the account, the foregoing analysis-of the latter shows the insured to have been entitled to benefits at the time of his death and the plaintiff entitled to recover. The assignments are dismissed and the judgment is affirmed.