Beeman v. Supreme Lodge , 29 Pa. Super. 387 ( 1905 )

Opinion by

Morrison, J.,

Silas A. Beeman was a member of the Supreme Lodge, Shield of Honor, appellant, and after his death his wife, appellee, brought suit on his certificate as a beneficiary member of the appellant society, and the ease was so tried in the court below that she recovered a verdict and final judgment for the full amount of her claim. The material facts in the case are practically uncontradicted, and the questions for determination here involve propositions of law and their application to the conceded facts.

It is conceded that the by-laws of the appellant society provide for assessments upon the members and for suspension for nonpayment thereof, and that Silas A. Beeman was properly notified of an assessment to be paid on or before March 30, 1903, and the uncontradicted evidence shows that the assessment did not reach the officer of the appellant, authorized to receive the same, until March 31, 1903. The uncontradicted evidence further shows that Beeman was suspended at the meeting night of March 30 for nonpayment of said assessment, and this was the last meeting night of that month.

We find in the record ten assignments of error, somewhat lengthy, but the view we take of "the case will not require separate discussion of these assignments, and we need not quote them in this opinion. No question is raised as to the validity of the assessment, nor is it contended that it was in fact paid to the proper officer of the appellant society until March 31. All of the assignments of error relate to and bear upon two propositions: 1. Was the assessment paid in time? 2. Was Silas A. Beeman properly and regularly suspended ?

The first assignment of error is : “ The court erred in refusing to direct a verdict for the defendant.” As we understand the law applicable to the facts, this assignment will dispose of the case.

It is conceded that Silas A. Beeman was. a member of the appellant society and that he was bound by its constitution, by-laws, rules and regulations ; that on March 2, 1903, he was duly notified that assessment No. 584 was due and must be paid on or before the last meeting night in March. The amount of the assessment was stated in the notice, and that it was payable to the financial secretary of the order. The notice contained the following: “No second notice will be sent. If not paid when due you will be suspended. Must be paid on or before March 30.” As to notice see Shuman v. Fire Ins. Co., 206 Pa. 417.

Article 10, sec. 333, of the by-laws of the order reads : “ Each member shall pay the amount according to age, as per table, and any member failing to pay same on or before the last meeting night of each month shall stand suspended from the order and all benefits therefrom, and the financial secretary shall notify the worthy master, who shall immediately announce the suspension to the lodge. The financial secretary shall notify the supreme secretary on the monthly remittance notice, giving the member’s name, the date and cause of suspension.” It is further conceded that if the assessment was not in law paid before midnight of March 30, and if the member was legally suspended, then the plaintiff could not recover.

The appellee contends that the money to pay the assessment in question was inclosed in a letter, properly addressed and stamped, and deposited in the post office in Philadelphia on March 30, in time to have reached the financial secretary on that day. But the uncontradicted evidence, corroborated by the date stamped on the envelope, shows that the letter did not reach the financial secretary until the next day. The learned counsel for the appellee then argues that: “ If payment by mail is authorized either expressly, by custom or by the wording of the notice, then mailing the letter containing the money is payment, and the time of payment is the moment the letter is deposited properly addressed in the regular course of transmission.” In support of this proposition he cites a number of authorities which fully support it. Among these authorities are: Bacon on Benefit Societies and Life Insurance, p. 724, sec. 369 ; Primeau v. National Life Assn., 28 N. Y. Supp. 794 ; Calvin v. U. S. Mut. Accident Assn., 21 N. Y. Supp. 734 ; Palmer v. Ins. Co., 84 N. Y. 63. The doctrine of these cases rests on the theory that the money is sent by mail by authority of the creditor. In such, case deposit in the post office, properly addressed and stamped, is at the risk of the creditor, and payment is deemed to have been made at the time of deposit. But the difficulty of the case of the appellee is the lack of evidence showing, or tending to show, that Beeman was authorized either directly or by implication, to mail his assessment to the financial secretary. We fail to find any evidence in the record sufficient to even submit this question to the jury. As to the presumption arising from mailing the letter on March 30, see McSparran v. Ins. Co., 193 Pa. 184, where it is said: “ It is not therefore the sending but the receipt of a letter that will constitute notice, and there is no presumption of law that a letter mailed has been received.” (p. 191.)

The law of the order distinctly required the payment of the assessment on or before March 30, and we are clearly of the opinion that depositing it in the post office on that day was not payment without proof that it actually reached the financial secretary on the same day. The learned counsel further argues that Beeman had until midnight, March 30, to pay his ' assessment, and, therefore, his suspension before that time was void. Let this be conceded and it does not help the appellee. The authorities cited doubtless sustain the proposition that if Beeman had died before midnight of March 30 the lodge would have been liable on his benefit certificate; this because the certificate would not be void until midnight because of the failure to pay the assessment. We think the reasoning of Judge White in Jacob Och v. Homestead Bank and Life Ins. Co., 4 Pitts. Legal Journal (N. S.), 98, and Judge Arnold in Thomson v. Conn. Mut. Life Ins. Co., 4 Pa. Dist. Reps. 382, and the authorities cited by said judges sustain the appellee’s contention that if Beeman had died before midnight of March 30 his benefit certificate would have been in force. But conceding all of this does not sustain the judgment in this case for the plain reasons that Beeman did not die on March 30, nor’ for some time thereafter, and his assessment was not paid before midnight of March 30. The learned court below gave much weight to the fact that Beeman was suspended at the meeting night of March 30 before midnight. But under the facts in this case, we cannot agree with the theory of the court. If Beeman had died before midnight there would be much force in the position taken. If we construe the law to the utmost in favor of the appellee, Beeman was suspended by force of the law of the order, ipso facto, at midnight on March 30, because of the nonpayment of his assessment. “ Each member shall pay the amount according to age, as per table, and any member failing to pay the same on or before the last meeting night of each month shall stand suspended from the order and all benefits therefrom.” We think it a proper construction of this language, under the law of the order, to say that when the meeting adjourned on the evening of March 30, Bee-man was suspended and not entitled to benefits as a matter of law, without any action on the part of the lodge. It is the member himself, who, by violating the laws of the order, works his own suspension through the nonpayment of his assessment. The words, “ shall stand suspended,” when used in respect to policies of insurance and death benefit certificates, would seem to be equivalent, in their legal effect, to “ cease and determine ” and “ null and void.”

In Lantz v. Insurance Co., 139 Pa. 546, it was held, as fairly stated in the syllabus : “ A life insurance policy stipulated for the payment of quarterly premiums by the assured, providing that if they should not be paid on the dates named and in the lifetime of the assured, the policy should cease and determine, . . . . the consequence of the default of the assured in not paying said premium at maturity, was, that the policy thereupon ceased to bind the company and protect the assured, without any act or declaration on the part of the former.” In that case Mr. Justice Paxson on page 561 said: “ It declares that, if not paid on the days named and in the lifetime of the insured, the policy should ‘ cease and determine.’ By this I understand that it is suspended ; it ceases to bind the company and to protect the assured, and this without any act or declaration on the part of the former. It does not require a formal forfeiture.” In Duffy v. Alta Friendly Society, 17 Pa. Superior Ct. 531, the language was “ otherwise the certificate should be void,” and in deciding this case we followed the doctrine of Lantz v. Vermont Life Ins. Co., 139 Pa. 546.

In Hansen v. Supreme Lodge, 40 Ill. App. 216, a by-law provided : “ Each member shall pay the amount within thirty days from the date of such notice, failing which he shall stand suspended, and shall not be entitled, etc.” In construing this the court said : “ By force of the law Hansen was, for failure to pay said assessment No. 175, ipso facto, suspended. No act or proceeding of the lodge was necessary to cut him off from any right to the benefit fund.” In Knights of Honor v. Keener, 25 S. W. Repr. 1084, the supreme court of Texas said: “ We are of the opinion that it is immaterial whether there was or was not a suspension affected by the lodge. Keener’s failure to pay his assessment, ipso facto, worked his suspension.”

In the present case there was no appeal by Beeman because of his suspension, nor was there any appeal by his beneficiary, the appellee, from the decision of the supreme lodge in refusing payment of death benefits, notwithstanding that section 165 of the by-laws of the order provides: “ In case any dispute or controversy arises by reason of the admission to membership of any person in the order, or the suspension or expulsion of any member from the order, or the death or the proof of death or the payment of the death benefits of any member, or otherwise however, all rights, remedies and means of redress, now or hereafter allowed or provided by the laws of the order, shall first be exhausted by such member or his family, dependents, beneficiaries, or persons claiming his death benefits, before any proceedings at law or in equity shall be commenced against any subordinate lodge . . . .; and further in case there be a violation of this law, or non-compliance therewith, or a failure within sixty days after such rights, remedies a'nd means of redress are exhausted, to proceed according to law for the adjudication of the matter in dispute or controversy, the decision of the supreme lodge shall be final, binding and conclusive, without right to appeal, any law to the contrary notwithstanding.” Beeman as a member of the lodge was bound to know the law and to comply therewith and his beneficiaiy in maintaining her suit was bound to show a compliance with the provisions of section 165, or that a compliance therewith had been waived or prevented in some way by the lodge. Such by-laws are binding upon the association and its members : Toram v. The Howard Beneficial Ass’n, 4 Pa. 519 ; The Society for the Visitation of the Sick v. The Commonwealth, etc., 52 Pa. 125; Wick v. Fraternities Accident Order, 21 Pa. Superior Ct. 507.

So far as this record shows the appellee resorted to a court of law without making effort to have her alleged grievances righted in accordance with the laws, usages and customs of the order of which her deceased husband had been a member, and for this reason, she did not present a case that entitled her to go to a jury.

We find much in the charge of the learned court below raised by the several assignments of error in conflict with the law as we understand it, applicable to the facts in this case, but feeling compelled to sustain the first assignment of error, the case will thereby be finally disposed of and, therefore, we refrain from commenting upon the other assignments.

The judgment is reversed and judgment directed against the plaintiff.