Ellis v. Fraternal Aid Union

Citations

• 108 Kan. 819
• 197 P. 189

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Benefit Insurance — Forfeiture of Membership by Engaging in Military Service — Forfeiture Lawfully Waived “During Period of War.” A fraternal beneficiary society which had a constitutional provision that if a member engaged in military service it would operate to forfeit his membership, adopted a resolution that the provision “be and the same is hereby suspended and repealed” during the period of the war, and afterwards it contested a claim for a benefit on the life of a member who had entered military service and had died of wounds received in action 'in France, prior to the adoption of the resolution.</p> <p>Held, that the resolution was retroactive in its operation and that the .beneficiary was entitled to recover on the certificate.</p> <p>2. Same — Resolution Waiving Forfeiture “During Period of War” — Interpretation Question of Law. The force and effect of the resolution was a question of law for the trial court, and no error was committed by the court in instructing the jury that the pleaded fact that the member had entered military service was not a defense.</p> <p>3. Same — Time of Paying and Receiving Assessments — Estoppel. Nor was any error committed in instructing the jury that if the defendant or its agent, by a course of conduct in transacting its business with its members, led the insured to believe that assessments might be paid in a particular manner and at times other than those specified in the by-laws or contract, it would be estopped to claim a forfeiture because the assessments were not paid strictly at the times and in the manner prescribed in the by-laws.</p> <p>4. Same — Instructions. Other rulings in charging the jury are held to be without material error.</p> <p>5. Same — Evidence Supports Finding of Payment of Assessment. The evidence examined, and it is held that the evidence is sufficient to support a finding of a payment of the assessment in question.</p>