National Union v. Shipley , 92 Ill. App. 355 ( 1900 )

Me. Justice Wiedes

delivered the opinion of the court.

Two principal contentions are made for appellant, viz.: First, that the court erred in the exclusion of certain evidence tending to show notice of assessments to Mr. Shipley; and, second, that the court erred in not finding for appellant, because it is claimed that the record shows that Mr. Shipley had ceased to be a member of appellant in good standing, thereby suspending himself by operation of the by-laws, and that he died while so suspended.

The evidence excluded was a part of the testimony of the witness Fred O. Behm, who was the assistant of the financial secretary of the appellant during the time when it is claimed that notices of the assessments which Mr. Shipley failed to pay were sent to him, and whose duty it was to mail such notices. After the witness testified as to his knowledge of making out the notices and his duty as to mailing, he was asked the following question, viz.: “Mow, you may describe the methods used in making out and filling up and preparing for sending these notices of assessments,” to which the court sustained an objection, and said: “ It is not the method that he adopted in other cases or generally that would control in this, but what he did in this;” whereupon counsel for appellant offered proof of the uniform method in that regard, which the court refused to receive, and also asked the following question of the witness, viz.: “ Well, you may tell us what he did in this case

in the matter of filling out the notices % ” which was objected to, the objection sustained and an exception preserved to both the rulings of the court.

We are of opinion that the learned trial judge was in error in these rulings. 1st Greenleaf on Evid., Secs. 38 and 40; 1st Taylor on Evid., Sec. 181-2; 2nd Daniel on Mego. Instruments, Sec. 1054; Knickerbocker, etc., Co. v. Pendleton, 115 U. S., 339-47; Goetz v. Bank of Kansas City, 119 U. S. 551-60; Equitable Life, etc., v. Frommhold, 75 Ill. App. 43-54.

But it is said that this excluded evidence is as to the method or custom of a private individual, and that the rule applied to banks or public offices is not applicable. The rule is applied to the usual course of business of private individuals in their offices and business. 1st Greenleaf on Evid., Sec. 40, and cases cited, including Dana v. Kemble, 19 Pick. 112; 1st Jones on Evid., Sec. 46; see, also, cases cited in the Pendleton case, supra, pp. 345-6; 1st Taylor on Evid., Sec. 181.

We are, however, of opinion that this cause need not be reversed and remanded for the error in excluding this evidence, as the evidence in the record, in our opinion, clearly preponderates in favor of appellant that Mr. Shipley received notice of the assessments in question. The financial secretary of appellant, George E. Kehm, testified that he sent notices of these assessments to Mr. Shipley and gave in detail the method pursued by him in making out and sending the assessment notices to members, and said that it was his uniform practice, after the notices were made out seriatim, from the membership roll in regular order, and the envelopes addressed in the same way, to place the notices in the envelopes, after which they were sealed, stamped and mailed, and that he did this with assessments Nos. 135 and 136, and that these assessment notices contained in an envelope were addressed to Joseph E. Shipley, 1499 Washington Boulevard, Chicago, Ill., duly stamped and mailed, and that they had never been returned to him. On cross-examination he admitted that he had no personal recollection of each individual assessment notice sent out, and that his testimony regarding sending the notice in question to Mr. Shipley was based entirely upon his custom and not upon any distinct or independent recollection of his own, and that he thought in the majority of • cases he didn’t personally see the letters or envelopes containing the notices put in the letter box or post-office, but that they were turned over to his clerk for mailing. He also testified that he heard from other members of the council as to assessments Nos. 135 and 136, who came in and paid the same to him.

The witness Fred C. Eehm corroborated his brother as to the general custom of making out and mailing notices, but said that he did not have a distinct recollection as to notices made out in October, 1893.

The witness Byce testified to a conversation which he had with Mr. Shipley between the meetings of Council 66, in December, 1893, and January, 1894, in which the witness said that Mr. Shipley told him, in response to an inquiry by witness as to whether he would be at the following meeting of the council, that he, Shipley, had been suspended, and when asked with regard to his re-instatement, Shipley said, “I received notice from Behm if I didn’t go to the doctor by a certain time that 1 would be dropped; I must go and be examined to get in now,"” and when the witness spoke further with Mr. Shipley about his re-instatement and coming to the meeting, and that he did not like to see old members drop out, Shipley replied: “I don’t know—I can’t keep it up. I’m going to drop it.”

The only evidence as against what is above recited on behalf of appellant, is that of appellee, who testified that there was a private mail box, which was locked, on the back of her residence where letters that were sent to the house were delivered; that the mail was always delivered there; that she usually took the mail out of the box; that Mr. Shipley usually left before the mail came in the morning, and that when he came home at night it would be after the last delivery of the mail; that the mail was taken out of the box probably as soon as it came, and that she did not remember seeing any mail or a letter like the one claimed to have been sent with the assessment notice. In view of this evidence, we think there is no reasonable doubt but that Mr. Shipley received the assessment notice in question. Moreover, it was sufficient if the notice was mailed to Shipley at his last known address, as provided by the by-laws, which was done.

The only remaining question to be considered is as to whether he was in good standing and not rightfully suspended at the time of his death.

It is claimed for appellee that the assessment was not regularly levied by the proper officers of the appellant, but this is not tenable. As we have seen, when Mr. Shipley made application to become a member, he agreed that his suspension or expulsion from, or voluntary severing his connection with the order should forfeit his rights and those of his beneficiary to all benefits and privileges therein, and that he would conform in all respects to the laws, rules and usages of the order then in force and which might thereafter be adopted by the same. The certificate which he received provides that the statements and representations made in his application are made a part of that contract, and in addition requires that he should comply with the laws, rules and regulations controlling the benefit fund of appellant, or that should thereafter be enacted by the senate, which is the governing body of appellant.

By law 41, section 1, Mr. Shipley was required to pay at each assessment the sum of $3.15. By law 42 the secretary of the senate was required to notify each council on the tenth day of each month to forward to the treasurer immediately the assessment of every member due before the date of such call, and direct that an assessment be collected from the members and that “ whenever the demands of the treasury require more frequent assessments, the notice issued on the tenth day of the month shall call for two or more assessments.” Section 2 provides that on receipt of a call for an assessment the secretary of the council shall acknowledge the same to the secretary of the senate, and immediately notify the financial secretary of the facts set forth in the call; and section 8 makes it the duty of the financial secretary to at once notify every member liable to an assessment, which notice may be bjr postal card or any other manner satisfactory to the council, unless otherwise provided by the secretary of the senate, and “ may be mailed to or left at the last known post-office address or residence of a member or handed to him in person. * *

If the notice is left at or mailed to, the last given or known address of a member, it shall be sufficient notice to him. Each member shall pay the amount due from him within one month from the date of such notice.”

Law 43, section 1, is as follows :

“ If any member shall fail to pay to the financial secretary of his council the amount due from him upon assessment within one month from the date of the notice, as provided by law, he shall stand suspended from the council.”

Law 44 provides as to the method of re-instatement of members who have become suspended, and provides that as to members remaining suspended for more than six months their membership shall cease.

The evidence fully establishes that notices of assessments 135 and 136 were sent out, as provided by these by-laws, and as we have seen, such notice was received by Mr. Shipley. It either reached him through the mail or in some other way, and he knew that because he had failed to pay the assessments thereby called for, which is also clearly established by the evidence, he was suspended. This suspension lasted for more than six months after he failed to pay the assessments, and under law 43 he stood suspended within one month from the date of the notice, October 10, 1893, and under law 44, his membership in the order ceased, and he thereby, under the terms of his application and his certificate, forfeited all his rights and those of his beneficiary in the benefit fund of appellant. By his failure to pay these assessments, he was ipso facto suspended. Hanson v. Supreme Lodge, etc., 40 Ill. App. 219, and affirmed in 140 Ill. 306; Royal League v. Moerschbaecher, 88 Ill. App. 89, and cases cited; Ry. Passenger, etc., Assn. v. Leonard, 82 Id. 214; Bridges v. National Union, 76 N. W. Rep. 270.

But it is said that the assessments were irregular; that there was no authority in the by-laws by which two assessments could be called at once. This contention is fully answered by by-law 42, which allows two or more assessments to be called when the demands of the treasury require more frequent than monthly assessments, and by the evidence, which clearly establishes that the demands of the treasury on account of death losses, required that two assessments be made.

It is further claimed that the secretary of the senate had no right to call any assessment, and laws 1 and 10 are referred to as establishing this contention. Law 1 empowers the senate of the National Union to make laws for the government of the order. The statute of this State with regard to beneficiary societies, section 5, act of June 22, 1893, Bev. Stat. Chap. 73, permits this to be done. The by-laws of the order made pursuant to this power authorizes the secretary of the senate to make the call of assessments that was made. Bridges case, supra.

Being of opinion that the evidence in the record clearly shows that appellee is not entitled to recover, the judgment of the Circuit Court is reversed and judgment will be entered in this court in favor of appellant for its costs in this and in the Circuit Court. Beversed, and judgment in this court for appellant.