Supreme Lodge of Knights of Pythias v. Withers

Fifth Circuit

Supreme Lodge of Knights of Pythias v. Withers

89 F. 160, 32 C.C.A. 182, 1898 U.S. App. LEXIS 2365

CourtCourt of Appeals for the Fifth Circuit

DecidedMay 24, 1898

DocketNo. 666

StatusPublished

Cited by4 cases

This text of 89 F. 160 (Supreme Lodge of Knights of Pythias v. Withers) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Supreme Lodge of Knights of Pythias v. Withers, 89 F. 160, 32 C.C.A. 182, 1898 U.S. App. LEXIS 2365 (5th Cir. 1898).

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Opinion

PER CURIAM.

By agreement this case was practically tried in the court below by the judge upon an agreed state of facts. The .judge rendered an elaborate opinion on the law of the case as applicable to the facts. The assignments of error are (1) that the court erred in insiruciing tlie jury to ünd a verdict for the plaintiff, with interest from tlie 5th day of November, 1895; (2) the court erred in refusing to instruct the jury, at the instance of the defendant, as follows: “If they believed the evidence, they must find for the defendant.” These assignments of error amount to no more than the complaint that the judge erred in deciding the case. Counsel for plaintiff in error in their brief specifically point out the errors of law of which they complain. It would seem that they ought to have complied with our rule 11 (21 C. C. A. cxii, 78 Fed. cxii.), with regard to the assignment of errors. As there is no plain error apparent of record, we might well dismiss this writ of error upon this ground.

Among other matters of law, the trial judge held that there had been no forfeiture of Withers’ insurance, because Withers had promptly paid his monthly premium, and that this payment, with the payments of other members of the section, and according to the course of dealing between the secretary of the section and the hoard of control, had been deposited in the post office on the last day of the month of October, 1895. We Concur with this finding. Notwithstanding [164]*164the provision in section 10 of the general laws, that the officers of sections are the agents of the members, and'shall in no wise be considered as the agents or the representatives of the board of control of the Endowment Bank or of the supreme lodge, we are of opinion that the secretary of the section was in fact the agent of the board' of control to receive and forward the dues paid by the individual members (Whiteside v. Supreme Conclave, 82 Fed. 275; Knights of Pythias v. Bridges [Tex. Civ. App.] 39 S. W. 333; and see Insurance Co. v. Wilkinson, 13 Wall. 222, 234); and that when payment had been made by the insured, under section 4 of the general laws, to the secretary of the section, the money so paid belonged t.o the board of control. Under a fair construction of section 6 and of section 10 of the general laws, when the secretary of the section deposited in the post office at Greensboro the moneys collected as the monthly payments and dues of the individual members of the section, and, in this, followed a long course of business, the said payments and dues were then and there received by the hoard of control (Buell v. Chapin, 99 Mass. 594; Gurney v. Howe, 9 Gray, 404); and as in this case the admitted facts show that the payments and dues were deposited by Chadwick, the secretary of the section, in the post office at Greensboro, on the 31st day of October, 1895, there was no forfeiture, under section 6 of the general laws, Campbell v. Supreme Lodge, 168 Mass. 397, 47 N. E. 109, does not conflict with this view of the case. Other questions argued need not be considered. The judgment of the circuit court is affirmed.

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PER CURIAM.

By agreement this case was practically tried in the court below by the judge upon an agreed state of facts. The .judge rendered an elaborate opinion on the law of the case as applicable to the facts. The assignments of error are (1) that the court erred in insiruciing tlie jury to ünd a verdict for the plaintiff, with interest from tlie 5th day of November, 1895; (2) the court erred in refusing to instruct the jury, at the instance of the defendant, as follows: “If they believed the evidence, they must find for the defendant.” These assignments of error amount to no more than the complaint that the judge erred in deciding the case. Counsel for plaintiff in error in their brief specifically point out the errors of law of which they complain. It would seem that they ought to have complied with our rule 11 (21 C. C. A. cxii, 78 Fed. cxii.), with regard to the assignment of errors. As there is no plain error apparent of record, we might well dismiss this writ of error upon this ground.

Among other matters of law, the trial judge held that there had been no forfeiture of Withers’ insurance, because Withers had promptly paid his monthly premium, and that this payment, with the payments of other members of the section, and according to the course of dealing between the secretary of the section and the hoard of control, had been deposited in the post office on the last day of the month of October, 1895. We Concur with this finding. Notwithstanding [164]*164the provision in section 10 of the general laws, that the officers of sections are the agents of the members, and'shall in no wise be considered as the agents or the representatives of the board of control of the Endowment Bank or of the supreme lodge, we are of opinion that the secretary of the section was in fact the agent of the board' of control to receive and forward the dues paid by the individual members (Whiteside v. Supreme Conclave, 82 Fed. 275; Knights of Pythias v. Bridges [Tex. Civ. App.] 39 S. W. 333; and see Insurance Co. v. Wilkinson, 13 Wall. 222, 234); and that when payment had been made by the insured, under section 4 of the general laws, to the secretary of the section, the money so paid belonged t.o the board of control. Under a fair construction of section 6 and of section 10 of the general laws, when the secretary of the section deposited in the post office at Greensboro the moneys collected as the monthly payments and dues of the individual members of the section, and, in this, followed a long course of business, the said payments and dues were then and there received by the hoard of control (Buell v. Chapin, 99 Mass. 594; Gurney v. Howe, 9 Gray, 404); and as in this case the admitted facts show that the payments and dues were deposited by Chadwick, the secretary of the section, in the post office at Greensboro, on the 31st day of October, 1895, there was no forfeiture, under section 6 of the general laws, Campbell v. Supreme Lodge, 168 Mass. 397, 47 N. E. 109, does not conflict with this view of the case. Other questions argued need not be considered. The judgment of the circuit court is affirmed.

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89 F. 160, 32 C.C.A. 182, 1898 U.S. App. LEXIS 2365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/supreme-lodge-of-knights-of-pythias-v-withers-ca5-1898.

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