Harris v. National Council, Junior Order United American Mechanics , 168 N.C. 357 ( 1915 )

Beowh, J.

This is an action brought to recover $500 on a benefit certificate, No. 24, issued by the National Council, Junior Order United American Mechanics, of Silk Hope Council, No. 328, of the same order, for the legal dependents of W. R. Harris.

The certificate contains these conditions:

“Upon the condition that the said Silk Hope Council, No. 328, is now and shall be at the time of the death of the said W. R. Harris in good standing in the Funeral Benefit Department of the National Council, Junior Order United American Mechanics of the United States of North America; that is to say, that it has paid all assessments due to the Funeral Benefit Department at the time of the death of the said W. R. Harris, and has complied with all laws, rules and regulations governing the Funeral Benefit Department, and is in good standing with the National Council and State Council, having jurisdiction over said council.

“Also, -apon the further condition that the said W. R. Harris was not received to membership nor retained as a member in violation of the laws and decisions of the order, and that at the time of his death he was a beneficial member in good standing of said Silk Hope Council, No. 328, and entitled to death benefits in accord-anee with the constitution and laws _of tha-t council and the State and National Councils now in force or hereafter adopted prior to said death.”

[Beneficiary Degree Seal.]

The defendant moves to nonsuit:

(1) Because the plaintiff has failed to show by affirmative evidence that the conditions recited were complied with. The plaintiff offered evidence of a demand, introduced the certificate sued on, and proved the death of the assured, and thus made out a prima facie ease. Doggett v. Golden Gross, 126 N. C., 471.

It is well settled that in an action upon a life insurance policy the burden of proof is upon the insurance company to show nonpayment of dues or other matters to avoid the policy, when the certificate of insurance has been put in evidence and the death has been shown. Wilkie v. Junior Order, 147 N. C., 637.

(2) Because the plaintiff failed to comply with the rules and regulations of the order in respect to appeals to the National Judiciary.

Section 23 of the rules and by-laws reads as follows: “In case of the refusal of the secretary-manager to approve a death claim, and the council desires to appeal from his decision, it shall be the duty qf the council within sixty days to file with him a bill of particulars, giving all the facts of the case, whereupon it shall be the duty of the secretary-manager to prepare his reason for refusal to pay such claim, and forthwith present all papers in the case to the National Judiciary for final adjudication.”

The insured was a member of the local council, but the beneficiaries are not and are given no right of appeal. If the council refuses to act, the beneficiaries have no protection except the courts. In this case the council refused or failed to act. It was admitted that the deceased died on 5 July, 1912; that proof of death was filed in August, and that this action was not begun until 18 February, 1913, more than six months after the proof of the death was filed. .By delaying this long, the council had lost its right to appeal.

The plaintiffs are not responsible for the laches of the local council. They are not even members of it, and. cannot have a voice in its management. They cannot thus be deprived of their right to appeal to the courts. The point is expressly decided in Kelly v. Trimont Lodge, 154 N. C., 99. In that case Mr. Justice Manning, speaking for this Court, said: “Where the question involved is the enforcement of a property right, such as is presented in this case, we hold that the courts can be invoked by a member to aid him in the enforcement or protection of such rights without resorting in the first instance to the tribunals of the order.”

The motion to nonsuit was properly overruled.

The remaining two assignments of error set out in the appellant’s brief are without merit and need no discussion.

No error.