Bray v. NORTH CAROLINA POLICE VOLUNTARY BEN. ASS'N

128 S.E.2d 766 (1963) 258 N.C. 419

Walter BRAY
v.
NORTH CAROLINA POLICE VOLUNTARY BENEFIT ASSOCIATION (an unincorporated association).

No. 458.

Supreme Court of North Carolina.

January 11, 1963.

Page & Page, Rockingham, for plaintiff.

Bynum & Bynum, Rockingham, for defendant.

MOORE, Justice.

The trial judge concluded, as a matter of law, that plaintiff was entitled to retirement benefits under the rules and regulations of defendant Association pertaining to retirement.

The relationship of defendant Association and plaintiff is that of insurer and insured. Williams v. Order of Heptasophs, 172 N.C. 787, 789, 90 S.E. 888. The constitution, by-laws, rules and regulations of a beneficial association operate as a contract and should be reasonably and liberally construed to effectuate the benevolent purpose of the association and the manifest intention of the parties. That construction must be put on the by-laws and rules of the association, taken as a whole, which is most favorable to the members. When the rights of members are involved the by-laws and rules declaring a forfeiture are to be construed so as to prevent a forfeiture if they are reasonably susceptible of such construction. 10 C.J.S. Beneficial Associations § 28, p. 269; 18 Appleman: Insurance Law and Practice (1945), § 10267, p. 575.

The rules of defendant Association provide that "to be eligible to retire and receive benefits of an assessment * * * a member must have had twenty years service as a law enforcement officer, the last ten of which must be continuous service, and have reached the age of fifty." At the time, 1 March 1957, that plaintiff resigned as a game protector on a straight salary basis, withdrew his contributions from the Teachers' and State Employees' Retirement System, and was placed on a "certified temporary" basis at an hourly wage, he had met all of the requirements for retirement benefits. He was 67 years of age and had served continuously for more than twenty-two years as a full-time game protector. But defendant insists that the last ten years of continuous service, to make plaintiff eligible under the rules, must extend to the date of application for retirement benefits. The rules provide that "No member shall receive benefits until July 1, 1960." (Emphasis ours.) We do not agree with defendant's construction of this provision. It merely provides that retirement benefits may not be received before July 1, 1960. There is nothing in the rule respecting "Retirement" which prevented a member from qualifying for the assessment and benefits before that date. It is obvious that the date was fixed to assure a five year waiting period from the date the Association was organized so that there would not be such number of retirements and assessments in the early stages of the Association's existence as would discourage younger officers in seeking and maintaining membership.

But defendant contends that only members could apply for and receive retirement benefits, and that on 6 July 1960 plaintiff was not eligible for membership and was not a member. Defendant relies on the rule that "when any member ceases to be a (full-time) law enforcement officer * * he shall not be eligible to continue membership * * *." For the purposes of this appeal we assume, but do not decide, that under ordinary circumstances this provision would bar plaintiff's right. It must be conceded that plaintiff was not a full-time law enforcement officer after April 1958, and perhaps not after February 1957. However, the trial court ruled that defendant had waived this eligibility rule and was "estopped to deny that (plaintiff) was a member of the Association on July 6, 1960" —the date he applied for retirement benefits.

An insurer may waive provisions inserted in the insurance contract for its benefit. Widows Fund of Sudan Temple v. Umphlett, 246 N.C. 555, 99 S.E.2d 791. The pertinent law with respect to waiver is stated in Hicks v. Home Security Life Insurance Co., 226 N.C. 614, 617, 39 S.E.2d 914, 916, as follows: "Waiver of the forfeiture provision in a policy of insurance is predicated on knowledge on the part of the insurer of the pertinent facts and conduct thereafter inconsistent with an intention to enforce the condition. In Coile v. Order of United Commercial Travelers, 161 N.C. 104, 76 S.E. 622, quoted in Paul v. Reliance Life Ins. Co., 183 N.C. 159, 162, 110 S.E. 847, and in Arrington v. Continental Life Ins. Co., 193 N.C. 344, 137 S.E. 1375 it is said * * *: `A course of action on the part of the insurance company which leads the party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract.' New York Life Ins. Co. v. Eggleston, 96 U.S. 572, 577, 24 L. Ed. 841; Knickerbocker Life Ins. Co. v. Norton, 96 U.S. 234, 24 L. Ed. 689."

Plaintiff personally appeared before the board of directors of the Association on 21 February 1957 and the board was advised that the employment status of plaintiff would change, effective 1 March 1957, from a permanent salaried employee to an hourly basis. The board permitted plaintiff to continue his membership, subject to reconsideration. The record does not disclose any further action by the board with respect to this matter. Again, on 28 March 1958, plaintiff appeared before and informed the board that "effective March 1, 1957, he resigned as a game protector, on a straight salary basis, withdrew his contributions from the Teachers' and State Employees' Retirement System and since that date has been employed on a `certified temporary' basis." The directors took no action to terminate his membership, but, on the contrary, the Association continued to carry him on its rolls and assessed him in the same manner other senior members were assessed. This continued until he applied for retirement benefits on 6 July 1960. He promptly paid all assessments. These facts are sufficient to support the conclusion that defendant, with knowledge of plaintiff's employment status, waived the forfeiture of membership provision and acted in a manner inconsistent with an intention to enforce the provision.

Defendant further contends that plaintiff forfeited his right to retirement benefits by failing "to notify the Association in writing of any change in employment status." The contention is not sustained. The rule relied on is incorporated in an amendment adopted by the board of directors on 8 October 1959, and set out in full in the factual statement. It is doubtful that this amendment is binding in any way on plaintiff since it was adopted without his knowledge and consent, after he became a member, and was not submitted to and approved by a majority of the members of the Association. Bragaw v. Supreme Lodge, 128 N.C. 354, 38 S.E. 905, 54 L.R.A. 602. But assuming that it was binding on plaintiff after its adoption, it had no retroactive effect and the employment status of plaintiff did not change after its adoption. He could not have been under any duty to give a written notice.

The judgment below orders the Association to assess each person who was a member of the Association on 6 July 1960 and pay the sum collected to the plaintiff. It is probable that some of those who were members on that date have since died, retired, become disabled, or otherwise terminated their membership, and are not now subject to assessment. According to facts stipulated, the Association on 1 July 1960 had "1807 members who were assessable at $1 each, and 153 members who were assessable at $5 each." Plaintiff was therefore entitled to receive $2572. The superior court should order the Association: (1) to forthwith assess all of its presently assessable members who were subject to assessment on 6 July 1960, and pay over the amount collected from the assessments to plaintiff to be credited by him on the amount to which he was and is entitled; (2) to order the Association in its ensuing annual assessment of fees to include a sufficient sum to pay plaintiff the balance due him, under the authority conferred upon the board of directors to assess annual fees for "whatever it considers necessary to carry on the functions of the Association," and to pay such balance to plaintiff when thus collected. The cause is remanded in order that the judgment may be modified in accordance with the foregoing directives.

Modified and affirmed.