Pearson v. Anderburg et al.

the $2.55 in cash the day before July 1, 1898. Even had the deceased not been given credit for the said goods amounting to $1.15, he would only have been in arrears on July 1, 1898, the last-named amount; and now, conceding that on the first day of July, 1898, there was another month due, as the dues were payable $1 a month in advance, he was in arrears only $2.15 on July 7, 1898, which was less than 13 weeks. But, in addition to this, the financial secretary and treasurer of the lodge says that when plaintiff paid him the $2.55 (which, he says, was July 14th; the plaintiff says was June 30th) she also handed him a bill for the said $1.15, and told him to give credit for it. If plaintiff's testimony, therefore, is true, the deceased then was not in arrears at all on July 1, 1898. Besides, plaintiff produced a receipt issued and signed by the said secretary and noble grand of the order, and with the seal of the association affixed, certifying that the deceased has paid $3.70 "in full for all charges to July 1, 1898;' one "in full of all charges to September 15, 1898;' another "in full of all charges to November 1, 1898." Moreover, the court found as a fact that on the first day of July, 1898, the lodge was indebted to the deceased in the sum of $1.15; that the said plaintiff on the said day paid to the said secretary and treasurer the sum of $2.55, which, on the fourteenth day of July, 1898, was by him turned over to the lodge, and it gave him credit therefor and for said bill of $1.15 on dues, and which was received by the lodge with full knowledge of the sickness and state of mind of the said deceased, and that the said payment of the said $2.55 placed the deceased in good financial standing with said lodge up to the first day of July, 1898; that the plaintiff paid the said lodge the monthly dues for every month thereafter up to January, 1899, all of which was received and retained by the said lodge with full knowledge of all the facts and conditions surrounding the said deceased. The evidence is sufficient to support these findings. In such case the lodge is es

7

Pearson v. Anderburg et al.

topped from insisting upon any forfeiture. Millard v. Supreme Council (Cal.), 22 Pac. 864; Benefit Ass'n v. Kinsey (Va.), 43 S. E. 338; Lord v. Protection Ass'n (Mich.), 96 N. W. 443; Menard v. Society, etc. (Conn.), 27 Atl. 1115; Roeding v. Lodge (Comp. Pl.), 11 N. Y. Supp. 712. But what would seem to be most conclusive against appellants in this contention is the fact that there is evidence showing that the sickness of the deceased did not begin July 7, 1898, but that it began in 1897, and continued up to the time of his death, and from which ailment he died, and the court so finding the fact to be.

Upon a careful consideration of the whole case, we are of the opinion there is no error in the record except a mere clerical one. It appears the court made a mistake, which was one only of computation, in the number of weeks from July 1, 1898, to May 7, 1901. The court entered judgment for $554.25. The amount for which judgment should have been entered, on a correct computation, is $508.65. Plaintiff has offered to remit the excess, which is $45.60.

The judgment of the court is therefore affirmed, with the modification that the court below, on remittitur be, and it is hereby, directed to so modify the judgment to read for $508.65, instead of $554.25. In all other particulars it shall stand as made. The costs of this

appeal to be taxed against appellants.

BARTCH, C. J., concurs in the judgment. Mc

CARTY, J., concurs.

Sterling v. Lodge.

RETTA STERLING, Respondent, v. THE HEAD CAMP, PACIFIC JURISDICTION, WOODMEN OF THE WORLD, a Corporation, Appellant.

No. 1548. (80 Pac. 375.)

1. Mutual Benefit Insurance: Action: Complaint: Sufficiency.

A member of a fraternal benefit society, desiring to change the beneficiary to his fiancee, stopped paying dues and assessments for six months, and applied for membership, and the issuance of a certificate to his wife; he having married in the meantime. The member died three months after application, without having qualified as a member, and without having paid the monthly dues and assessments, though he paid his initiation fee. The second certificate was sent to the local camp clerk for delivery to the insured when duly signed, and on payment of dues and assessments. The certificate and laws provided for a change of beneficiary by surrender of the old certificate and payment of a fee therefor, and made the payment of dues and assessments and the taking of the obligation conditions precedent to liability on a certificate. In an action against the order by the member's widow, she declared on both certificates; asserting a right to recover on the first certificate on the theory that deceased was ignorant, and, in changing the beneficiary, was misled by defendant's local camp clerk, and was advised to cease paying dues and assessments, thereby becoming delinquent, and then to reunite with the order, and that because of the misdirection his delinquency should be excused. The second certificate was claimed to be an executed contract, and deceased was alleged to have been at his death a member of the order, in good standing. Held, that the court erred in overruling demurrers to the complaint on the ground that it was not certain whether plaintiff sought to recover on the first or second certificate, and, if on the first, she could not recover, she having no interest therein, and that it was not certain whether plaintiff sought to recover because of the wrong of the camp clerk in misdirecting the deceased, whereby he became delinquent, or whether she sought to recover only on the second certificate, as an executed contract of insurance.

2. Same:

Sterling v. Lodge.

Election of Causes of Action.

When plaintiff rested her case, defendant moved that she be required to elect on which certificate she proposed to stand. Thereupon her counsel stated. "We are not seeking to recover on one certificate any more than on the other," but claimed to recover, however, only on one. Held, that the refusal to require the plaintiff to elect was error.

3. Same: Evidence: Admissibility: Errors:

Cured by Charge.

When not

Errors in the admission of evidence that the deceased did not understand the constitution of the defendant and the first certificate as to a change of beneficiary, and requested a member of the lodge to interview the local camp clerk in regard thereto, and as to what the clerk said, were not cured by a charge that the first certificate was forfeited for nonpayment of dues and assessments, and submitting to the jury questions relating alone to the second certificate, where there was a direct conflict between the plaintiff and witnesses for defendant as to matters bearing on the second certificate.

4. Same: Change in Beneficiary.

Where the contract of insurance between a fraternal order and a member provided for a change of beneficiary by surrender of his old certificate, an attempt to make a change without following such provisions is not excused by failure of the member to understand his contract.

5. Same: Power of Local Lodge Officer.

The laws, rules, and regulations of a fraternal order, stipulating that the local camp clerk has neither express nor implied authority to waive the terms of the contract, are binding on the member.

6. Same:

Member Presumed to Know Rules.

A member of a fraternal order is presumed to know and understand its rules and regulations.

7. Same: Constitution: By-Laws: Construction. Where a certificate of insurance was never received by, nor delivered to, the insured, nor signed by the applicant or local officers of the lodge pursuant to the positive terms of the application and laws of the society, making such delivery and signatures conditions precedent to the liability of the order thereon, the contract of insurance was inoperative.

Sterling v. Lodge.

8. Same:

The constitution of a fraternal order, providing that a member who has been suspended for more than six months must apply for membership on the same terms and conditions as any person who has not been a member, except that he shall not be required to be again formally introduced in the ritual, does not exempt such member from taking an obligation, required by the order as a condition precedent to membership agreeing to pay all dues and assessments, and that he is in sound health.

9. Same:

Where the payment of monthly dues and assessments was made a prerequisite to liability of a fraternal order on its certificates of insurance, but the laws provided that, in case of sickness and inability to pay, the member, by notify ing his camp, would be kept in benefit under certain conditions, the failure for three months preceding a member's death to pay dues and assessments is fatal to the liability of the order on a certificate, in the absence of any such notice.

10. Same: Tender: Evidence.

In an action on a fraternal benefit certificate, evidence held insufficient to show a tender of dues and assessments.

11. Same: Tender, When Excused.

In an action on a fraternal benefit certificate, a contention that a sufficient tender of dues and assessments was excused, because of testimony of the lodge clerk that a good tender alone would not have authorized him to deliver the certificate in suit, and that he would not have delivered it until the applicant was obligated and the certificate signed by the camp commander, is untenable, where the tender was not the only condition precedent to give effect to the contract of insurance.

BARTCH, C. J., dissenting.

(Decided March 30, 1905.)

Appeal from the Third District Court, Salt Lake County.-Hon. T. D. Lewis, Judge.

Action to recover a death benefit. From a judgment in favor of the plaintiff, the defendant appealed. REVERSED.