Oldham v. Modern Brotherhood of America

ELLISON, P. J. — Plaintiff’s action is on a certificate of life insurance issued to her husband in his lifetime. She recovered judgment in the trial court. Deceased’s benefit certificate was issued in September, 1907, at defendant’s Independence, Missouri, lodge. He took sick on the 13th of March, 1910, and died in two weeks thereafter. The members were required to pay monthly assessments to the mortuary fund. These assessments were levied the month preceding their colleciion and notice was given to each member, and they were required to he paid before the end of the month succeeding their levy. The members were also required to pay each month, without notice, a per capita tax and also a payment to a reserve fund. If the member failed to pay any of these dues, he became suspended ipso facto. He might, however, become reinstated, if in good health, at any time within sixty days, by paying back dues. During the years 1908 and 1909 deceased customarily, or at least frequently, failed to pay his dues, but no forfeiture was had for the reason that the secretary of the local lodge would pay them for him out of the funds of the local lodge by forwarding to the supreme secretary of the grand lodge, and deceased would at a convenient season pay to, or reimburse, the secretary. But on February 10, 1910, deceased having failed to pay the January assessment, the secretary of the local lodge reported him suspended for such failure. Afterwards, in the same month, deceased paid the secretary, and in his remittance to the grand lodge on March 10th he showed deceased reinstated; but that he was again suspended for failure [568] to pay the assessments for February. Deceased was taken with bis mortal sickness March 13th, and, as already said, died (March 26th) two weeks thereafter. But before his death, on March 21st, he paid his back dues and was reinstated and this status was so acknowledged by the grand lodge on March 24th. When the grand lodge was informed that deceased was sick when last payment and reinstatement was had, and that he died in five days thereafter, it repudiated the reinstatement and offered to return the payment. That the constitution and by-laws of a fraternal benefit society may provide for prompt payment of dues and assessments and for suspension, ipso facto, for failure to pay, cannot be questioned. For prompt payments are necessary to the existence and prosperity of such societies. [Westerman v. Supreme Lodge, 196 Mo. 670, 724; McMahon v. Maccabees, 151 Mo. 522.] Neither can it be doubted that such society, by a course of conduct in its dealing with one of its members, may waive its right of suspension or forfeiture. [Burke v. Grand Lodge, 136 Mo. App. 450; Andre v. Modern Woodmen, 102 Mo. App. 377; Godwin v. K. L. of S., 166 Mo. App. 289.] Therefore the only question involved in this controversy is whether such a course of dealing was had by the society with deceased as to reasonably lead him to believe and expect that the strict requirements as to payment of dues would be demanded of him. The evidence undoubtedly tended to establish deceased’s many failures to pay and of the local lodge paying for him and not exacting a forfeiture. It further tended to show that defendant, through its general officers knew of these defaults and that it sanctioned the acts of the secretary of the local lodge in paying for him. It was shown that Ledru Silvey was State manager for defendant and that he had knowledge of the acts of deceased and the local lodge in [569] reference to Ms dues, and approved the same. These questions were submitted to the jury and the verdict puts the case well within the settled rule of law wMch we have stated above. That Silvey was shown to be defendant’s agent and that his knowledge was defendant’s knowledge; and that the course of conduct of the secretary of the local lodge as to neglect in payment of dues was known to defendant’s general officers, and that it will not be allowed to suddenly turn upon deceased in his last sickness and demand a forfeiture on account of the same conduct it had customarily forgiven and overlooked, is determined by authorities supra and by our Supreme Court in McMahon v. Maccabees, 151 Mo. 522; and by the Courts of Appeals in Edmonds v. Modern Woodmen, 125 Mo. App. 214, 219; Shartle v. Modern Brotherhood, 139 Mo. App. 433, 440. The judgment must be affirmed. All concur.