
    Ezra C. Adams et al. v. Grand Lodge of Ancient Order of United Workmen of Nebraska.
    Filed November 19, 1902.
    No. 12,278.
    Commissioner’s opinion,
    Department No. 1.
    1. Insurance: Receipt oe Money by Financial Oeficer oe Subordinate Dodge. Mere recent of money by the financial .officer of a subordinate lodge of a benevolent association is not of itself a waiver .of other conditions for the reinstatement of a suspended member, especially when the receipt is accompanied by an express requirement of the other conditions.
    2.-: -: Liability: Grand Lodge. Where no authority over the payment of death benefits in the subordinate lodge, or its officers, is shown, their negotiations and dealings with the beneficiaries after the assured’s death can establish no liability on the part of- the grand lodge.
    3. -: -:-. After liability has been denied by the grand lodge, and payment made for the purpose of reinstatemen 1 tendered back, the fact that a member of the grand lodge's finance committee invited plaintiff’s attorney to lay his case before the whole committee for action by it, was not a binding admission of liability, though it involved some expense to plain • tiff to do so.
    4. .Statement by Member of Finance Committee: Waiver. The expression to a beneficiary by one member of such finance committee, when shown, after the assured’s death, the receipt sent to assured for his last payment, that it fixed defendant’s liability, was not a waiver of forfeiture.
    Error from the district court for Douglas county. Action by Ezra 0. Adams, individually and as guardian of Anson Adams, against the Grand Lodge of Ancient Order of United Workmen of Nebraska, upon a benefit certificate. Tried below before Slabaugh, J. Judgment for defendant. Plaintiff brings error.
    
      Affirmed.
    
    
      Yvrgü 0. Stricloler, for plaintiff in error.
    
      James W. Carr and Matthew Gering, contra.
    
   Hastings, C.

This is a suit upon a benefit certificate issued by the defendant in error to one Obarles W. Adams, September 20, 1886. Mr. Adams was in good standing up to February 28,1899. Then, by reason of a failure to pay an assessment which became due February 1, he is alleged to have become suspended, under a provision of the by-laws of the order that such delinquency should of itself and without any action by the defendant or its officers, work a suspension. On March 6, 1899, his suspension was noted on the books of the subordinate lodge and reported to the grand lodge. Another assessment fell due March 1, and was not paid and became delinquent March 28, 1899. April 18, 1899, after he had been suspended more than thirty days, he procured an express money order at Lincoln, Nebraska, for $5 and sent it to John Oarnaby, the financier of his subordinate lodge, with the following letter:

“Lincoln, Nebr.,.189..
“To John Oarnaby, Omaha, Nebr.
“Friend John : I enclose $5 to apply on account. I don’t know how I stand with the lodge; have been knocked out for some weeks and just getting around again. Please address me care Lincoln Hotel, room 326, Lincoln, Nebr.
“Yours truly,
C. W. Adams.”

This letter was postmarked at Lincoln, April 18, 1899, and was received on April 19, 1899. Mr. Carnaby says that he received the letter, and replied, as nearly as he can remember, in the following terms:

“Brother Adams: I received your letter with the enclosed Pacific Express, order for $5. Enclosed you will find receipt for same. You will also find health certificate which you must properly sign and forward on to me as you can not be reinstated until I receive the same.”

He says that he included with this letter a blank certificate of health in the required form, which is as follows:

“To the Or mid Lodge of the Ancient Order of United Workmen:
“I, -to whom Beneficiary Certificate No. - was issued in Lodge No.of the Ancient Order of United Workmen, of the state of Nebraska, having been suspended from all rights, benefits and privileges of the order, and having forfeited all my rights as a member of the order, by reason of non-payment of assessment No. which suspension and forfeiture occurred within a period of three months prior to the date of this certificate, and desiring to be reinstated in said order, as provided by the laws thereof, do hereby certify that I am, at this date, in sound bodily health, and that I agree that the reinstatement of myself as a member of the order, based upon the certificate, shall be valid and binding only upon the condition that the statement herein contained, relating to my bodily health, is true in every respect upon the day and date recorded on this certificate.
“Attest:.”

He wrote a receipt for the amount and inclosed the letter, health certificate and-receipt, in an envelope addressed to C. W. Adams, Lincoln, Nebraska, and deposited the envelope, with postage prepaid, in the post office at Omaha on the morning of April 21. No reply was ever received and no health certificate ever returned. The money order was held, pending a reply, and appears with the evidence in the case. On that day O. W. Adams died suddenly of apoplexy. The beneficiary named in his certificate was his wife. She, however, had died in 1898. Plaintiffs were his sons, and by the rules of the order were entitled to receive the benefit if he had been in good standing. Ezra O. Adams found the benefit certificate among his father’s papers, and was appointed guardian for his brother, and says he notified the subordinate lodge of his father’s death and never learned of any objections to the sufficiency of such notice. In 1897 Mr. Adams seems to have been suspended for more than three months, and was reinstated on an application and medical examination. In this second application he expressly agreed to comply with the regulations and requirements of the supreme lodge of the order as then existing. The laws of the order adopted in 1897, as testified to by the grand recorder, Barber, provided as follows:

“Sec. 4. There' shall be due as a regular assessment, without notice, on the first day of each month, from each workmen degree member in good standing of this jurisdiction, the sum of one dollar, payable to the financier of his lodge, on or before the 28th day of the month, Provided, that if there is no assessment for that month, or if there be two or more assessment's for the month, notice thereof shall be published in the official organ of the order, or in such other manner as the grand lodge may prescribe.”

Section 5 of article 7 of defendant’s constitution provided that each member who had not paid his assessment on or before the 28th of the same month should, by the fact of such non-payment, stand suspended, and no action on the part of the lodge or its officers would be required to effect such suspension; and section 6 of the same article provided that after such suspension, a certificate might be renewed within three months by the payment of all assessments during the time of suspension, but after thirty days’ delinquency a certificate of good health must be furnished upon the blank required by the order; that the renewal should be reported to the lodge at its next meeting, and a vote taken, and if the majority was in favor of reinstatement, the member should be reinstated, and when all these conditions had been complied with, the certificate should be renewed in full force, and not before. It was further provided that a member should have no claim upon the beneficiary fund during suspension.

Ezra C. Adams testifies to receiving from the mail, on the day of his father’s death, a receipt for the $5, but does not know whether the letter or blank certificate accompanied it or not. Notice had been given to produce the letter and health certificate, and no objection is now made that the evidence as to them is incompetent. The plaintiffs tendered proof that it was Mr. Adams’s custom to pay his dues from time to time in the lump sum in the mariner in which they were transmitted at this time, but the evidence was rejected. There seems to have been both talk and correspondence between Ezra C. Adams, the older son, and the officers of tbe subordinate lodge, and tbe latter seem to have promptly informed tbe parties of tbe suspension of tbe father, and to bave interested themselves somewhat to secure tbe payment of tbe benefit by tbe grand lodge officers. It appears by tbe minutes of tbe grand lodge proceedings that tbe facts in this case were laid before it, and' tbe whole matter referred to tbe master workman, grand' finance committee, and that on laws and supervision. Tbe grand lodge officers refused to furnish blanks for proof of death, on tbe ground that tbe assured bad been suspended; and this was reported to plaintiffs. Tbe subordinate lodge officers bad exerted themselves to ascertain tbe facts as to Mr. Adams’s death, and that of bis wife, and who were tbe surviving children, and made a report to tbe grand lodge officers on May 3; they seem to bave requested Ezra C. Adams to obtain for them some of these facts. Tbe action of the subordinate lodge seems to bave been taken principally at tbe request of Ezra C. Adams. Tbe sworn statement of tbe undertaker and physician showing tbe death of Mr. Adams on April 21 was furnished. Mr. Ezra C. Adams bad some conversation with a Mr. Jaskalek, a member of defendant’s finance committee; to Mr. Jaskalek, Mr. Adams seems to bave shown tbe receipt for $5, and was told by Mr. Jaskalek that be supposed that was sufficient or, as tbe witness expressed it, “a cinch,” and that of course tbe benefit would be paid. Plaintiffs tendered evidence of Ezra C. Adams to show that bis father was in Omaha tbe Sunday before bis death, and to all appearance in bis usual health, but this evidence was refused.

It is complained that there is no competent evidence to show that there was an assessment due on tbe 1st day of February, 1899, but there seems to be no foundation for this objection. Tbe proof as to tbe adoption of tbe amendment to tbe constitution establishing a regular assessment for each month seems ample, and we find no question in this case except as to a waiver of tbe suspension. Tbe waiver is claimed, first, on tbe ground of accepting tbe money,'but tbe money was only received conditionally, tbe express order was never cashed, and the undisputed evidence shows that the receipt for it was accompanied by the express requirement of the health certificate, and the mailing of the blank for that purpose. Members must he presumed to have known the regulations as to a health certificate, and it appears that the assured had been suspended before. It seems clear that the production of this health certificate was necessary to the reinstatement, and there is nothing in the facts shown to indicate any waiver of its production on the part of the subordinate lodge officers, even if it was held to be within the power of such officers to waive it. The proceedings subsequent to the death of the assured did not amount to such a waiver. Of course, there could be no reinstatement of the assured after his death. The beneficiaries were informed of his suspension; the conversation with Mr. Jaskalek of the finance committee was certainly not a waiver of such suspension. It seems to have been had before he was informed of the facts. He was only shown the receipt. He thereupon is said to have remarked: “That is a cinch, of course you will get it.” The correspondence in the record shows that the son of the assured was informed of the suspension, though he does not remember it. The assisting in a fraternal way to care for the body of their former member by the officers of his lodge, and their evidently sincere efforts to get all of the facts before the grand lodge, and to obtain payment of his death benefit, are entirely creditable to them, but do not alter the legal relations of the parties. Whatever the functions of the local lodge officers as to collecting dues, and whatever they may be able to waive as to the time and manner of collecting them, they are not the paying body. They have no authority as to the paying of death benefits, and their negotiations with the beneficiaries after the assured’s death can establish no liability.

It is claimed that the fact that after the denial of liability, and after the tender back of the money order, one of the members of the grand lodge finance committee expressed a wish that the plaintiff’s attorney should present bis case to tbe whole committee at Grand Island, and that he did so at an expense of about $8, was a waiver of the forfeiture. It is clear, however, that the precise question under consideration was whether the forfeiture should be considered waived, and the committee was merely undertaking to consider that question. Whatever view may be taken of the authority of subordinate lodge officers to waive requirements as to payment of assessments and provisions for suspension, it seems clear that in this case the member was properly suspended, and died without reinstatement, and no liability attaches to defendant.

It is recommended that the judgment of the district' court be affirmed.

Kirkpatrick, C., concurs.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.  