Montour v. Grand Lodge

62 P. 524, 38 Or. 47, 1900 Ore. LEXIS 139

• Court: Oregon Supreme Court
• Decided: October 22, 1900
• Status: Published

Opinion

Mr. Justice Moore,

after making the foregoing statement, delivered the opinion.

The constitution of the Grand Lodge of the Ancient Order of United Workmen, so far as deemed applicable herein, provides, in general terms, that the beneficiary fund shall remain in the treasuries of the subordinate lodges until called for, and be composed of assessments made from timé to time upon the members, one of which is paid by each member as a part of his admission fee. Whenever such fund in the grand lodge treasury becomes less than $2,000, the grand recorder is required, upon the first day of the month, to call upon the subordinate lodges to forward the beneficiary fund in their respective treasuries, and at the same time to máke an assessment of one dollar upon each member of the order who has received the workman degree previous to the death upon which the assessment is made. Within five days from the receipt of such call, it is incumbent upon the subordinate lodges to forward said fund to the grand recorder. When an assessment is made upon any member for the beneficiary fund, it is his duty to pay the same to the financier of the subordinate lodge on or before the twenty-eighth day of the month in which it is made, and, if he fail to do so, he shall forfeit all the rights and privileges of the order from and after that date, and shall not be reinstated unless within three months from such forfeiture he shall pay all assessments that have been made during that time, including the assessment for the nonpayment of which he was suspended. If such payment is not made within three months from the date of the suspension, as a prerequisite to his reinstatement he must be examined and recommended therefor by the medical examiner of his lodge, and such examination and the member’s application must be approved by the medical examiner of the grand lodge, and he must also obtain the consent of his lodge by a majority vote. If a suspended member is not reinstated within six months from the date of his suspension, his benefit certificate shall be annulled, and he shall not be readmitted to membership except upon an original application, and by paying the sum of two dollars into the general fund, and one dollar into the beneficiary fund, and is not above the age of forty-five years. Any member suspended or expelled from the order for any cause shall forfeit all claims on the part of himself or his beneficiary to the beneficiary fund, and to the rights, benefits, and privileges of membership in the order. Any member may appeal to the grand lodge or to the grand master workman from any decision of his lodge, by giving a written notice thereof to the master workman of the subordinate lodge within thirty days, and filing within, sixty days from the date of such decision with the grand master workman or the grand lodge a transcript thereof.

1. It is contended by defendant’s counsel that the evidence conclusively shows that Montour was suspended July 28, 1894, by reason of his failure to pay an assessment'which became due at that time; that he did not pay the delinquent and accrued assessments until more than three months had elapsed from his suspension; that, having made application for reinstatement within six months from July 28, 1894, the lodge of which he had been a member, by a majority vote, refused its consent thereto, from which action he took no appeal, but acquiesced therein; and hence the court erred in refusing to charge the jury to find for the defendant as requested. Plaintiff’s counsel insist, however, that Montour’s assessment, which became due July 28, 1894, was paid for him by Pig Iron Lodge; that on November 19, 1894, and within three months from the assessment which became due in August of that year, he paid all assessments and dues; that the subordinate lodge, in rejecting his application, acted without jurisdiction; and that having tendered to the lodge the assessments and dues imposed by the grand lodge, which were refused, he was a member of the order in good standing at the time of his death, and hence no error was committed as alleged.

An examination of the evidence shows that the monthly dues of Pig Iron Lodge are 50 cents, and that the grand recorder, in 1894, made the following assessments in favor of the beneficiary fund, to wit: January 1, No. 1, $1; February 1, Nos. 2 and 3, $2; March 1, No. 4, $1; April 1, No. 5, $1; May 1, Nos. 6 and 7, $2; June 1, No. 8, $1; that Montour during that year paid the following sums to the financier of his lodge, to wit: February 15, assessments Nos. 1, 2, and 3, $3, dues, $1; April 7, No. 4, $1, dues, 50 cents; May 10, Nos. 5 and 6, $2, dues, $1; being delinquent, July 1, $2 on assessments and 50 cents for dues. The .financier of bis lodge, however, neglected to give him credit for $1 on account of assessments and 50 cents for dues; thus making it appear that he was delinquent $3 for assessments and $1 for dues. The account of each member with his lodge is balanced the thirtieth of June and thirty-first of December of each year. Montour’s account, as corrected, shows he was indebted July 1, 1894, on accotmt of assessments, $2, dues, 50 cents. The grand recorder thereafter made the following assessments : July 1, No. 9, $1; August 1, No. 10, $1; September 1, No. 11, $1; October 1, Nos. 12 and 13, $2; November 1, Nos. 14 and 15, $2; December 1, Nos. 16 and 17, $2; total assessments, including those remaining unpaid July 1, $11, dues, $3.50. Montour made the following payment: November 19, assessments Nos. 7 to 16, inclusive, $10, dues, $3.50; thus leaving him delinquent on account of assessments the sum of $1 when the books were balanced December 31, 1894. His account thereafter is as follows: January 1, 1895, debtor to balance on account of assessment, $1; January 1, assessments Nos. 1 and 2, $2. January 17, 1895, Montour paid $4 on account of assessments, and $1 on account of dues — thus overpaying his account $1 on assessments and 50 cent6 on dues; which explains the error of the financier in failing to give him credit for these respective amounts, which were paid May 10, 1894.

J. C. Haines, the financier of Pig Iron Lodge, No. 135, sent to the grand recorder, on July 27, 1894, the sum of $51 and a beneficiary return, purporting to be on assessment No. 9, showing that on that day there were 51 workmen in good standing in said lodge; and on August 17, 1894, the sum of $50 and a 'beneficiary return, purporting to be assessment No. 10, showing that on said day there were 50 members in good standing, and that on August 1, 1894, Dan Montour was suspended for the nonpayment of delinquent assessment No'. 6. .Haines, appearing as defendant’s witness, testified that Montour’s assessments Nos. 6 and 7, May i, 1894, -$2; No. 8, June 1, $1; and No. 9, July 1 — were paid to the grand recorder for him by Pig Iron Lodge. This witness, on April 5, 1894, gave Montour a receipt for the payment of assessment No. 4, $1, and dues, 50 cents; and May 10 another receipt, purporting to evidence the payment. of assessments Nos. 4 and 5, $2, and dues, $1 — -thus showing that he collected assessment No. 4 twice, when the receipt should have evidenced the payment of assessments Nos. 5 and 6. Plaines also testified that Montour paid $13.50 on November 19, 1894, and that $4 thereof was paid into the general fund of Pig Iron Lodge in satisfaction of the assessments so advanced for him. The financier’s beneficiary return shows that Montour was suspended August 1, 1894; but as his default, if it occurred prior thereto, was on the twenty-eighth of the preceding month, it is quite probable that his suspen-. sion should have been noted as of that date. It will be remembered that Haines’ report to the grand recorder, purporting to be on assessment No. 9, was dated July 27, 1894; and if he made a mistake in the number of the assessment, as is claimed by defendant’s counsel, and the report should have been based on assessment No. 8, Montour would have until July 28 to pay assessment No. 8, and hence the report is undoubtedly correct in stating that he was in good standing-on the twenty-seventh of that month. Haines further testified that if he had promptly obeyed the call issued by the grand recorder July 1, 1894, upon the subordinate lodges to remit the beneficiary fund in their respective treasuries, he would have sent the amount due, $51, to the grand lodge, July 5, instead of the twenty-seventh of that month; thus showfing that the beneficiary return was predicated upon the June assessment No. 8, and that a mistake was made in designating such report as assessment No. 9.

It will be remembered that the constitution of the grand lodge requires that when a subordinate, lodge is instituted, and workmen are initiated therein, each must pay into the treasury of his lodge for the beneficiary fund a sum equal to one assessment; and on the first of any month, when this money is needed to pay a death loss, a call is issued by the grand recorder, and at the same time an assessment is made by him to replenish the subordinate treasuries. Within five days from the receipt of such call the sum so on deposit in the local treasury must be sent to- the grand lodge, and the assessment made upon each member must be paid on or before the twenty-eighth of that month. If the grand lodge were just organized, and subordinate lodges instituted, the first “call” issued by the grand recorder, necessitated by a death loss, would be for the sum deposited in the subordinate treasuries, which must be sent to the grand lodge within five days from the receipt of the call. The “assessment” issued at the same time would necessarily be No. x, and payable on or before the twenty-eighth day of the month in which it was made. It will thus be seen that the “call” is always one number in advance of the “assessment,” and Newton Clark, the grand recorder, testified that it is owing to this fact that Haines made a mistake in designating the beneficiary return of July 27, 1894, as predicated upon assessment No. 9, when it should have been assessment No-. 8, which was sent to the grand lodge in pursuance of call No. 9. Haines admits that the $51 remitted by him July 27, 1894, should have been sent on the fifth of that month, thus corroborating the testimony of the grand recorder, and conclusively showing that the assessments paid by Pig Iron Lodge for Montour were Nos. 6 and 7, $2, for May, 1894, and No. 8, $1, for June of that year, and not $4, as at first stated by Haines. The testimony shows that Haines, having forgotten to give Montour credit for $1 paid May 10, 1894, on account of assessment, and 50 cents on account of dues, paid the same to Mrs. Montour when his attention was called thereto- after Pig Iron Lodg'e refused its consent to her husband’s reinstatement. Haines’ beneficiary report of August 17, 1894, shows that Montour was suspended on the first of that month, and, in our judgment, there is no testimony whatever tending to controvert this fact. True, Haines at first testified that the sum of $4 of the money paid by Montour, November 19, 1894, was retained by Pig Iron Lodge; but no records of the lodge having been introduced in evidence to corroborate his testimony in this respect, and he having thereafter admitted that the money remitted by him July 27, 1894, should have been sent on the fifth of that month, no other conclusion is possible than that the lodge paid $3 only on Montour’s assessment, and that he was delinquent on the July assessment, when, by his own act, he became suspended on the twenty-eighth of that month.

2. It is not the practice of this court, in law cases, to comment upon or weigh the testimony of witnesses; the rule being that if there is any evidence, however slight, tending to support the verdict, the judgment will not be disturbed upon appeal: Hardwick v. State Ins. Co., 23 Or. 290 (31 Pac. 656); State v. Foot You, 24 Or. 61 (32 Pac. 1031, 33 Pac. 537); Sperry v. Wesco, 26 Or. 483 (38 Pac. 623).

3. But, where there is no evidence whatever to prove a material issue, it is the duty of the court, when so requested, to instruct the jury to that effect, and to direct them to find accordingly: Briscoe v. Jones, 10 Or. 63; Lee v. David, 11 Mo. 114; Boland v. Missouri Ry. Co., 36 Mo. 484; Callahan v. Warne, 40 Mo. 131. We think, therefore, that the court erred in failing to give the instruction requested.

4. If we have erred in this deduction, however, because Montour’s certificate of membership created a presumption that he complied with all the laws, rules, and regulations of the order, which could only be overcome by showing that he failed in these respects, the burden of which was imposed upon the defendant (Bacon, Benefit Soc., § 414; Scheufler v. Grand Lodge, 45 Minn. 256, 47 N. W. 799; Mulroy v. Supreme Lodge, 28 Mo. App. 463; Stewart v. Grand Lodge, 100 Tenn. 267, 46 S. W. 579), and that it was the province of the jury to pass upon this presumption in connection with the other evidence, there is another feature of the case which, in our judgment, is conclusive. The financier’s beneficiary report showed that Montour was suspended for nonpayment of an assessment August 1,1894, after which he made no payment of the delinquent assessments until November 19 of that year; and, having allowed more than three months to elapse after he was suspended, he could not be reinstated on his own motion, but was required to pass the necessary medical examination. After passing such examination and being recommended for reinstatement, the members of Pig Iron Lodge, by a majority vote, refused their consent thereto, from which action he never appealed; and his wife, who testified that she generally paid his assessments, and had authority for doing so, accepted for him a return of the greater part of the money which he paid November 19, 1894, and January 17, 1895, thereby acquiescing in the decision of the subordinate lodge.

In Jeane v. Grand Lodge, 86 Me. 434 (30 Atl. 70), the plaintiff’s husband, having been admitted as a member of a subordinate lodge, was expelled from the order for having made a false statement or answer in his application for membership, from which action of the lodge he never appealed to the governing body, but acquiesced therein by accepting the money which he had paid. Upon his death,, his beneficiary, claiming that the expulsion was irregular and void, instituted an action to recover the sum stipulated in his certificate of membership; and it was held that members of a beneficial association must exhaust the remedies given them by the rules of the society, before applying to the courts of law for relief. In Supreme Lodge v. Wilson, 14 C. C. A. 264 (66 Fed. 785), the husband of the defendant in error having become a member of the order of the Endowment Rank of the Knights of Pythias, a certificate was issued to him, in which his wife was designated as the beneficiary. He was suspended from the society, however, for misconduct, from which decision he took no appeal to the supreme lodge. After his death his wife brought an action to recover the sum specified in the certificate, and it was held that, her husband having ceased to be a member of the society in good standing, and not having availed himself of the remedies provided by the rules of the order, no recovery could be had. In Karcher v. Supreme Lodge, 137 Mass. 368, the plaintiff’s husband became a member of that order, receiving a certificate in which his wife was named as the beneficiary. He was suspended from the order for the nonpayment of an assessment, and from this action took no appeal to the supreme governing lodge, and, having died, his widow commenced an action to recover the sum specified in the said certificate, and it was held that the action could not be maintained.

It was argued by plaintiff’s counsel that if it be admitted that Pig Iron Lodge only paid the sum of three dollars to the grand lodge on account of Montour’s assessment for May and June, 1894, the one dollar which he paid Haines for an assessment, and for which he received no credit on the books of the subordinate lodge, should have been applied in payment of the July, 1894, assessment, and, this being so, he was not in default three months when he paid the amount due. The right of a debtor at or-prior to the time of making a payment, to direct the application thereof, and the corresponding duty of-the creditor to obey such direction, are well established: Trullinger v. Kofoed, 7 Or. 228 (33 Am. Rep. 228). The receipt which Montour secured May 10, 1894, evidencing the payment of one dollar on account of an assessment, must be construed as a direction on his part to apply the money so paid in the particular manner specified: Stewart v. Keith, 12 Pa. St. 238. And this sum should therefore have been credited on assessment No. 6. But, notwithstanding the omission, said assessment was paid for Montour by the lodge in pursuance of a section of its by-laws, as follows: “The master workman and recorder are hereby authorized to draw from the general fund, on the fourth stated meeting of each month, a sum sufficient to pay all delinquent assessments. Brothers whose assessments are thus paid shall be required to pay the same on or before the fourth stated meeting of the following month, together with the additional sum of ten cents, but in no case shall the lodge pay delinquent assessments of any brother'whose assessments for the previous month may remain unpaid as provided in this section.” Mon-tour’s failure to repay the sum so advanced did not render him liable to suspension; for a decision of the grand lodge, then in force, is to the effect that a lodge which voluntarily pays the assessment of a brother cannot suspend him for nonpayment to the lodge, the repayment being left to his sense of duty. The statement in the financial report that Montour was suspended for the nonpayment of assessment No. 6 is therefore incorrect.

If it be assumed that Haines was the agent of Pig Iron Lodge in collecting the assessments from its members, so that a payment to him was equivalent to a payment to his principal, and that the latter was liable to the grand lodge for the default or neglect of its agent, Haines’ failure to give Mon-tour credit for the payment of assessment No. 6 was cured by the subordinate lodge in remitting that sum to the grand lodge. The lodge faithfully performed the duty imposed by its by-laws, by remitting to the grand lodge Montour’s assessment No. 7, which became due May 28, 1894, upon his neglect to pay the same. These payments were the full measure of Montour’s rights under the rules of the order, and, notwithstanding he had not repaid assessment No. 7, his lodge, in violation of the section of its by-laws hereinbefore adverted to, also paid for him assessment No. 8, which became due June 28, 1894. He was therefore not injured in any manner by Haines’ failure to give him credit for the one dollar which he paid, and this money, never having gone into the treasury of the subordinate or grand lodge, should not have been applied in payment of assessment No. 8, which became due July 28, 1894. True, the beneficial report for August of that year states that he was suspended for the nonpayment of assessment No. 6, but we do not think that the error in this respect is material. The evidence shows that about November 19, 1894, Montour insisted that he was a member of the order in good standing. But, inasmuch as he thereafter signed an application for reinstatement, he thereby admitted that a controversy existed respecting his position in the order; and having submitted this question to the members of the lodge for their determination, and not having appealed from their decision respecting a matter of-which the lodge had jurisdiction, he is bound thereby, though the attention of the tribunal may not have been called to' the failure of the financier to give him credit for the one dollar so paid. In Karcher v. Supreme Lodge, 137 Mass. 368, it was insisted that the plaintiff’s husband at the time he was suspended was sick and unable to work, and therefore not liable to suspension, because it was the duty of the lodge of which he was a member to keep him in good standing during his illness. Mr. Justice Field, commenting upon this question in deciding the case, says: “He was suspended by the tribunal which he had chosen to determine the question according to rules to which he assented in becoming a member, and lie received notice of the proceedings. The action of this tribunal, according to its rules, on a question which it had authority to decide, honestly taken, after the requisite notice to him, cannot be collaterally reviewed in this suit, on the ground that facts existed which, if brought to the notice of the tribunal, would have warranted or required a different decision.” Montour having been examined and recommended for reinstatement, and having due notice of the meeting of the lodge at which action was to be taken on his application, and being present thereat, except when the vote was taken, he was estopped from objecting to the regularity of the proceedings until he had exhausted the remedies prescribed by the order: Fischer v. Raab; 57 How. Prac. 87. Plaintiff, being in privity with her father respecting this contract with the defendant, is bound by the obligation which estopped him (8 Enc. PI. & Prac. 6) ; and, the evidence of such estoppel being uncontradicted, the court erred, in our judgment, in refusing to give the instruction requested.

5. It is insisted by plaintiffs counsel that the defendant is not prejudiced by the judgment rendered herein, because it failed to offer any evidence tending to show that the assessment of July, 1894, was made by proper authority, on account of a death loss, and in the manner prescribed by the constitution and laws of the order. Whatever the rule may be in this respect, we think the point contended for is without merit; for the defendant, having called Newton Clark, its grand recorder, as a witness, asked him to “state whose duty it is to levy assessments as occasion therefor occurs, and to give notice to the subordinate lodges and their members of such assessments.” An objection thereto having been interposed by plaintiff’s counsel, the court inquired of him: “Do you concede that the power exists in the grand recorder to do that, under the stipulation of the evidence filed here?” To which he replied: “Yes, your honor.” Clark testified, without objection, that he made assessment Ño. 9 July 2, 1894, and mailed written notices thereof to the recorder and financier of Pig Iron Lodge, No. 135, showing the date of the death, and the number and names of persons on account of whose death the assessment was levied. We think the admission of plaintiff’s counsel respecting the power of the grand recorder to malee an assessment, and his failure to object to the testimony concerning the time and manner of making the same, was an admission of all the substantive facts which authorized the assessment, the requisite proof of which was duly made. It follows that the judgment is reversed, and the cause remanded for such further proceedings as may be necessary, not inconsistent with this opinion.

Reversed.