Lounsbury v. Knights of the Maccabees of the World

Plaintiffs’ exceptions should be sustained, and the motion for a new trial granted, with costs to plaintiffs to abide event. The action was brought to recover $1,500 upon a certificate of insurance upon the life of the deceased, who was the husband and father of the plaintiffs. The trial court held that the deceased, having prior to his death been suspended, was never reinstated, as a member. He had concededly been suspended when, on the 12th day of August, 1905, he sought to be reinstated. He was required by the rules to make a written application, pay all arrears due the defendant and his local tént, and furnish a physician’s certificate, and then the local record keeper was required within 2 days to report the matter to defendant and remit the amount due it of the arrearages paid. Deceased furnished the certificate and paid all arrearages; but his application was verbal, and not in writing. He'died on the 26th day of August, 1905, 14 days after the attempted reinstatement. It seems the local record keeper kept the certificate and money paid him by the deceased, and never reported the matter to the defendant, or sent any of the arrearages due it.

First. It is urged that there was a failure to make the written application for reinstatement, required by the rules, and therefore the deceased was not entitled to be reinstated. Evidence was given by the

Second. Some claim is now made that the rate for August should have been paid, for the purpose of a reinstatement. No such claim was made on the trial. None was made by the local record keeper to deceased when he paid the arrears, assumed to be due. More than this, the deceased had the whole month of August in which to pay these rates. It was only dues and assessments for the month of August that he was required to pay, and none of these remained .unpaid. They were, so far as they existed, paid by the deceased as a part of the arrears. There is a clear distinction between monthly rates, which go to the defendant itself and are uniform during all the months, and dues, which go to the local tent, and assessments, which are specially made, and go some to the defendant itself and some to the local tent. The only amount here claimed to be left unpaid were the August rates. They were not required to be paid as a condition of reinstatement. They might be paid any time during the month of August. _

_ Third. It is claimed the deceased was not reinstated because the local record keeper failed to report the reinstatement to the defendant, and kept the money paid for arrearages and the physician’s certificate, and therefore the defendant’s medical examiner never approved of the certificate. No claim is made that the certificate was insufficient, or that for any reason it would have failed of approval if forwarded to the defendant, and in fact this point does not seem to have been suggested or urged in behalf of defendant, either on the trial or before this court. So far as actual reinstatement was the result of the default or neglect of the local record keeper, he was the representative of the defendant, and not the deceased, and defendant could not gain any advantage growing out of such default or neglect. Order of Foresters, 176 N. Y. 132 , 68 N. E. 145 ; Knights of Pythias, 177 U. S. 260 , 20 Sup. Ct. 611 , 44 L. Ed. 762 .

The facts bearing upon this question, including the credibility of the local record keeper, were for the determination of the jury, who were at liberty to disregard his evidence, if the same seemed to them untrue. He was an interested witness, and within the rule relating thereto, being a representative of the defendant here.

There should be a new trial, and a submission of the case to a jury. All concur, except KRUSE, J., who dissents in a memorandum, and SPRING, J., not sitting.

(dissenting). If the only failure of the assured to comply with the conditions for his reinstatement were the omission of

I think the case was correctly disposed of at the trial, and that the judgment should be affirmed.