Waites v. Brotherhood of Maintenance of Way Employees

186 S.E. 276, 181 S.C. 215, 1936 S.C. LEXIS 154

• Court: Supreme Court of South Carolina
• Decided: June 16, 1936
• Docket: 14316
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Baker.

Appellant is an association composed of subordinate lodges in various towns and cities in the United States and Canada, with its Grand Lodge in Detroit, Mich., and among its other business is the insuring of the lives of its members, subject to the provisions of the constitution and by-laws of the association known as the death benefit department of such constitution and by-laws.

Respondent is the niece of, and the beneficiary iii a certificate of insurance issued to one, G. W. Thomas, by appellant. Mr. Thomas had been a member of appellant for many years, and on April 1, 1928, the death benefit to which he was entitled was $500.00. The premiums on his insurance were payable in advance, quarterly, so that on April 1, 1928, Mr. Thomas was due to pay during that month the quarterly premium. Under the constitution and by-laws, if the premium for that quarter was not paid during the first month of the quarter, the member failing to thus pay, and in the instant case, Mr. Thomas, lost his right to participate in the death benefit built up, which, as aforesaid was $500.00. However, a member had the right to pay the quarterly dues within the quarter and become reinstated; but such reinstatement merely placed such member in a position to again start to build up a death benefit fund. All quarterly premiums had been promptly paid within the first month of the quarter in which they became due, from the time Thomas joined appellant association quite a number of years prior to his death, and until his death on July 15, 1934, in his eighty-fifth year of age, except the premium becoming due for the second quarter in the year 1928. This premium, according to the records of appellant, was not paid until May 21, 1928. It is the contention of appellant that,Thomas having failed to pay the second quarterly premium in 1928 until in May, he lost all rights in and to the $500.00 death benefit, and his beneficiary was entitled to only such death benefit as had accrued since his reinstatement, amounting to $150.00. It is unnecessary to go into detail as to the manner in which the death benefit increased as fixing the amount to which the beneficiary is entitled; it being conceded by the litigants that respondent should be paid either $500.00 or $150.00.

Upon a trial of the case in the Richland County Court, a jury awarded the beneficiary, the respondent herein, $500-.00, and appeal is taken to this Court.

Appellant, in printed argument, states the “Points Involved” as follows:

“1. Refusal to direct a verdict for the defendant on the evidence and under the terms of the by-laws governing the contract between the parties.

“2. Error in the admission of testimony to establish agency.

“3. Error in the Judge’s charge in submitting to the jury a question which was precluded by the terms of the by-laws, and was not applicable to the facts as proven.

“4. Inconsistent charge of the Court.”

Eor some time prior to April 1, 1928, Mr. Thomas had been a watchman or flagman at a grade crossing in the City of Columbia, S. C., which was a 7-day week job. Appellant’s local lodge had a lodge room and office near Efh'd’s Store, Main Street, Columbia, S. C., and held meetings on the third Sunday in each month, and it was on such third Sunday in the first month of the quarter that dues were usually paid. C. B. Smith, in 1928, was the secretary and treasurer of the local lodge. He resided at Ridge Spring, 42 miles from Columbia, but came to the lodge meetings. Mr. Thomas, being unable to attend the lodge meetings, either mailed his dues through the medium of a .post office money order or sent same to the meetings by some friend, and on occasions by his friend, a Mr. Sox, a section foreman for the same railroad company employing Thomas, and who worked and resided near him. Mr. Thomas, having no immediate family, had resided with his niece, the respondent herein, for several years, and continued to reside with her until his death, and respondent commenced to transact his little business affairs for him.

Over the objection of appellant, respondent was permitted to testify that on April 14, 1928, she went to the local office of appellant for the purpose of paying the quarterly premium of Mr. Thomas; that she was informed by a person unknown to her, in the lodge office, that Mr. Smith (the secretary and treasurer), was not in town; that this person told her to send the money by Mr. Sox; that in accordance with these, instructions, she carried the dues or premium and the last receipt to the house of Mr. Sox where she delivered same to him on the night of April 14, 1928. It was required in making a quarterly payment to exhibit receipt showing payment of the premium for the preceding quarter. It appears that Mr. Sox did not pay'the premium to the secretary and treasurer at the meeting held on April 15, but paid it at the next meeting in May, 1928. On May 1, 1928, Mr. Thomas had an attack of some kind, and did not work any more; in fact, was relieved of his job and was an invalid until his death. The premiums were sent to the secretary and treasurer through Mr. Sox as long as Mr. Smith continued to occupy the position of secretary and treasurer of the local lodge, and Mr. Sox always brought receipts therefor.

. C. B. Smith, the secretary and treasurer of the local lodge of appellant, testified that his construction of the constitution and by-laws of appellant was that a member could pay his dues at any time within the quarter without losing any accrued rights, and that he had given out this information to the membership generally.

On the testimony of the secretary and treasurer, and the testimony with reference to respondent having complied with the instructions of an unknown person in the lodge office o'f appellant, the case was submitted to the jury; the motion for directed verdict having been refused. Without this testimony there would have been no issue to submit to the jury, and under the admission of counsel for appellant and the pleadings, respondent would have been entitled to a directed verdict for $150.00, with interest until such date as could have then and there been determined when a legal tender of the $150.00 had been made by appellant to respondent.

As aforesaid, appellant objected to the admission of the testimony regarding instructions of an unknown person in the local office of appellant, and the sending of the dues through Mr. Sox in accordance therewith, and alleges error: (a) That the statement as to what was told by an unidentified person in the lodge room was hearsay; (b) that the designation of Sox by this unidentified person could not constitute Sox the agent of the Brotherhood for the collec tion of dues; (c) that this testimony left in the minds of the jury an inference that payment to Sox was binding on it, and was prejudicial.

We will, therefore, take up, first, appellant’s Exception 2, relating to the admission of testimony of respondent as to conversation had with unknown person in office of the lodge room, which was admitted in evidence for no other purpose, of course, than to establish agency. While it is a well-established rule of law in this State that the Courts abhor forfeitures and that very slight evidence will suffice to support a finding that a waiver of the right of forfeiture has occurred; yet, as stated by Mr. Justice Bonham, writing the opinion of the Court in Perry v. Sovereign Camp, W. O. W., 172 S. C., 456, 174 S. E., 397, 401, after setting forth the above rule, continued: “But it [the law], does not assume to ‘prevent’ one unless there is a foundation in fact or law to justify it. The sympathetic heart of the presiding Judge induced his generous hand to close on empty air in his effort to prevent a forfeiture.”

In that case, the Circuit Judge who tried it overruled a motion for nonsuit, stating: “ ‘The Courts will seize on any circumstance to prevent a forfeiture, and this Court is going to reach out right far to find some circumstance to prevent a forfeiture, I may be seizing on air, but I don’t think so.’ ”

So it appears that the trial Judge in the case at bar allowed his magnanimous heart to run away with his judgment in the admission of this testimony.

It would indeed be a dangerous precedent to say that an unknown person sitting in the office of a fraternal organization, without any explanation of his presence in said office, and without the slightest show of any authority therein, who himself had no power to accept dues, could authorize dues paid to some individual, merely a member of an organization, and thus create an agency which would be binding. Such testimony was totally irrelevant and inadmissible, because, if absolutely true, could not possibly create Mr. Sox the agent of appellant, so as to be binding upon appellant. We know of no authority upon which this testimony was admissible, and none has been cited; and the admission of this testimony was undoubtedly prejudicial to appellant.

We now consider if the testimony of the secretary and treasurer of the local lodge that under his interpretation and construction of the by-laws and constitution of appellant dues paid at any time within the quarter prevented the forfeiture of any accrued benefits, and that he had given out this information (misinformation), to the membership generally, all of which was in direct conflict with the plain and unambiguous provisions of the said by-laws and constitution, to the effect that the dues must be paid within the first month of the beginning of the quarter, otherwise, all accrued rights and benefits of, in, and to the death benefit department shall be deemed to have been forfeited, made an issue for the jury.

A portion of the dues paid by the members of the local lodge was regularly transmitted by the secretary and treasurer of the local lodge to appellant and he was therefore to this extent the agent of appellant. See recent case of Greer v. Equitable Life Assur. Soc. of U. S. (S. C.), 185 S. E., 68, and Section 8072, Civil Code, 1932.

Section 8047 of the Code of 1932, provides: “No subordinate body or any of its officers or members shall have the power or authority to waive any of the provisions of the laws and constitution of the association, and the same shall be binding upon the association, and each and every member thereof and their beneficiaries.”

In the case of Weathers v. Sovereign Camp, W. O. W., 119 S. C., 402, 112 S. E., 44, 48, the insured had paid his dues to be reinstated, but had not furnished a certificate of health as required by the by-laws and constitution, and this was not called to his attention by the secretary of the local lodge. Upon the death of the insured, the Sovereign Camp of the W. O. W. refused payment of his death claim. In passing upon this case, the Court said: “If the omission was intentional, it was a fraud upon the rights of the insured; if it was merely a mistake, then justice and fair dealing would not allow the defendant to profit by the errors of the person whom it had selected as its representative. This would be allowing the' defendant to take advantage of its own wrong.”

In the case at bar it could be said that all of the testimony negatives the idea that the insured or the beneficiary in anywise acted upon or was misled by the interpretation placed upon the by-laws and constitution of appellant by the secretary and treasurer'of the local lodge, since the record shows that all payments of premiums or dues, approximately 60 in number, were made within the first month of the quarter in which they became due, save and except the dues becoming due for the quarter beginning April, 1928, the occasion for this litigation, and that even as to these dues an attempt was made to pay them within the month of April, 1928, when respondent went to the office of the local lodge for the purpose of paying same to the secretary and treasurer, who was not there to receive the dues. On the other hand, if the insured, Mr. Thomas, and the beneficiary under the death certificate, the respondent herein, had known that the dues must necessarily be paid within the first month beginning the quarter for which dues became payable and were not lulled into security by the statement of the secretary and treasurer of the local lodge that dues could be paid at any time within the quarter without the loss of accrued benefits, then would they or not have made some inquiry of Mr. Sox when he failed to deliver to them a receipt for the April, 1928, dues within that month, and when he gave them a receipt dated in May, 1928, would they not have made some inquiry as to whether the payment made in May prevented loss of accrued benefits; and would Mr. Thomas, the insured, have undertaken to build anew a burial fund at the age of 78 years ?

We think this testimony made an issue necessary to be submitted to the jury under the case of Weathers v. Sov ereign Camp, W. O. W., supra, notwithstanding the fact that the insured had the right to pay the dues for the quarter beginning April, 1928, in May, 1928, and become reinstated for the purpose of building up a new death benefit, and had the right to continue to make payment of his dues promptly.

Having sustained appellant’s second exception, the case is remanded to the County Court of Richland County' for a new trial.

Reversed.

• Mr. Cpiiee Justice Stabler and Messrs. Justices Bon-ham and Fisi-iburne concur. Mr. Justice Carter dissents.