Jennings v. Grand Fraternity

Opinion by

Williams, J.,

The Grand Fraternity issued to John Jennings, October 5,1906, as a member, a benefit certificate for $1,000, payable at his death to Nora Jennings. She died August 6j 1907. John Jennings died April 19, 1911. John J: Jennings, his son, the administrator of Nora, sued- to'recover the amount of the certificate.

It appears that John J. Jennings was a collector of the defendant and it was his duty to collect dues and forward them to the main office in Philadelphia. In September, 1907, he was notified not to accept any more dues from his father, John Jennings, because the latter had been suspended. The. only reason for this suspension and the cancellation of the certificate was given in a postscript to a letter,, signed by the president of the defendant association, to the effect that it had been can-celled for misstatements in the application materially affecting the character of the risk. No charges were brought against the member, nor was there any trial, as provided by Art. XIII, of the constitution of the fraternity. He tendered his dues each month to the defendant’s collector, who refused to accept them. The collector so testified and the jury so found. Nothing appears in the record as to what the alleged material misstatements were.

Upon the death of John Jennings, defendant'was notified and requested to forward blanks for the proofs of death. Defendant replied that “John Jennings was suspended during the month of October, 1907, since which time his certificate has been'null and void.”

The court below made a recovery depend upon whether dues for October, 1907, and those subsequently accruing, had been tendered to defendant’s collector. The jury rendered a verdict for $1,101.56, upon which judgment was entered. From that judgment the present appeal has been taken. .

The appellant argues that the suit could not be maintained because the beneficiary died before the member; that she had no vested interest as Art. IX, Section 1, of the constitution of the fraternity provides that “no beneficiary shall have a vested interest in the benefit certificate until the-same has matured by reason of the .death of the member”; that her right in the-benefit ceased upon her death before the member. This clause must be construed in connection with Art, X, Section 2, which provides, inter alia, that “if the single cash payment has been specified in the certificate (as it was in this case) the said sum shall be paid to the beneficiary or her executors or administrators.” The clause relied upon by the appellant must be construed to mean that the member may change the designation at any time before his death, but upon his death the money shall be paid to the beneficiary or her personal representative under Art. X, Section 2. The suit was properly brought by the administrator of Nora Jennings.

The defendant further argues that as the deceased did not demand reinstatement in the association and exhaust his remedies under its constitution and by-laws, he was barred from any rights under the certificate. The answer to this is that no charges were preferred against the deceased nor was there a trial. Therefore, the suspension never took effect as a valid act of the association and there was no occasion to apply for reinstatement. As was said by the court below “the present case is a striking example of arbitrary action.” Under the circumstances we are not inclined to hold that the member must take affirmative action for reinstatement, there being no provision in the constitution expressly requiring it.

It is contended that as no proofs of death were furnished, no action could be maintained. The defendant, having denied all liability on the certificate, must be held to have waived the furnishing of proofs of death: Girard Life Ins., Annuity and Trust Co. v. Mut. Life Ins. Co., 97 Pa. 15; White v. Metropolitan Life Ins. Co., 22 Pa. Superior Ct. 501; Mills v. Pa. Mutual Live Stock Ins. Co., 57 Pa. Superior Ct. 483.

It is further argued that plaintiff cannot recover because of fraud in failing to notify the defendant of the tender of the dues. It is not material whether he notified it of offers subsequent to October, 1907, as the deceased was not required to make tenders after his dues had once been refused by the collector and president of the association: Gill v. Ladies’ Catholic Benevolent Assn., 36 Pa. Superior Ct. 458.

The error complained of in the fourth and fifth assignments was harmless and is not sufficient to warrant a reversal.

■ The judgment is affirmed.