Modern Order of Prætorians v. Blackburn , 42 Ga. App. 690 ( 1931 )

Jenkins, P. J.

(After stating the foregoing facts.) Something might be said in elaboration of the rulings stated in the fourth and fifth headnotes. We recognize the rule, as laid down in Sovereign Camp Woodmen of the World v. Shaw, 143 Ga. 559 (85 S. E. 827), that under the terms of the constitution and bylaws of the defendant fraternal beneficiary association, upon failure of a member to pay monthly dues by the 20th day of any month his suspension automatically resulted, without affirmative or judicatory act upon the part of the association issuing the certificate. It is the contention of the defendant that under the evidence in this case a verdict in its favor was demanded on tlie theory that the last payment of dues made by the decedent was for the month of November, 1925, and, therefore, his suspension automatically resulted from failure to pay dues for the month of December by the 20th day of that month; that thirty days after such automatic suspension his right to reinstatement upon repaying his dues and satisfying the local collector, or worthy recorder, that he had been in continuous good health since the date of lapse, terminated, and that thereafter he could not be reinstated except upon complying with the provision of the constitution of the order requiring the submission of a medical certificate. On the other hand, the plaintiff contends that the payment evidenced by the receipt signed by the collector, Lester, and dated December 5, 1925, covered dues for tlie months of December, 1925, and Januarjq 1926; that no other dues were payable until February 1, 1926, and the suspension of the insured did not result from any nonpayment of dues until February 20, 1926; that the payment made on behalf of the insured by McDaniel on February 26, 1926, operated to reinstate the insured under the thirty-day clause of the constitution, ■ the dues being accepted by the local collector prior to the accident, and that the insurance was, therefore, in force at the time of the death of the insured.

It is admitted by the secretary at Dallas that the dues for October and November had been, paid, but he fails to testify as to when such payments were made. The witness Lester attempts to connect the payment made on December 5 with the dues for October and November, but aside from such testimony by Lester there is no evidence going to indicate that such payment related to the October and November dues, or when the October and November dues were paid. In the absence of anything to the contrary, the jury were authorized to infer that Blackburn made his payments for October and November in regular course, that is, by the 20th day of each month, and such a presumption is not contradicted by the Dallas secretary or by any testimony other than that of Lester. With respect to the date of the last payment of dues made to Lester, after the lapse on February 20, Lester was contradicted by Daniel, who testified positively that the payment made by him on behalf of the insured was made prior to the automobile accident. There was proof also that after the death of the insured Lester made affidavit to the effect that the last payment of dues was on February 20; this affidavit contradicted Lester’s testimony on the trial that such dues were actually paid over to him by McDaniel on March 1, and after the accident to the insured. We think, therefore, that the jury were authorized to find that this witness had been successfully impeached. Civil Code (1910), §§ 5881, 5884.

Eliminating, therefore, the testimony of the witness Lester, there was sufficient proof on behalf of the plaintiff to show payment of dues for the months of December, 1925, and January, 1926, by virtue of the payment made on December 5, 1925, and a subsequent payment for the purpose of reinstatement within the terms of the contract of insurance. Without Lester’s testimony, the jury were authorized to infer that the decedent, on December 5, 1925, owed the defendant nothing except the dues which had matured on the first day of that month, and that the payment made on December 5, 1925, evidenced by Lester’s receipt, covered dues for the months of December and January, that no further dues became payable until February 1, and the decedent did not fall in arrears until February 20, 1926. The payment thereafter made by McDaniel on the insured’s behalf, which, according to the testimony of M'c-Daniel, was made prior to the accident and at a time when there appears to be no dispute that the insured was in good health, was sufficient to cover dues for the current month and for the succeeding month, so as to render the insurance of force on the date of the insured’s death. See, in this connection, Starnes v. Atlanta Police Protective Asso., 2 Ga. App. 237 (58 S. E. 481); Farmers Mutual Life Asso. v. Elliott, 4 Ga. App. 342 (61 S. E. 493); Farmers Mutual Co-operative Fire Ins. Co. v. Kilgore, 39 Ga. App. 528 (148 S. E. 18). Accordingly, the charge of the court dealt with in the 4th headnote was not inapplicable, and the verdict in favor of the plaintiff is authorized by the evidence.

Judgment affirmed.

Stephens and Bell, JJ., concur.