ARK.] UNITED laRDER OF GOOD SAMARITANS v. ACKER. 927 UNITED ORDER OF GOOD SAMARITANS v. ACKER. 4-4599 Opinion delivered April 12 . , 1937. 1. INSURANCE—BURIAL CERTIFICATE.—In action On a burial certificate, evidence held sufficient to sustain finding that all premiums were paid and that the certificate was in full force. 2. INSURANCE—BURIAL CERTIFICATE.—Where January and February premiums on a burial certificate providing that "If your dues are not paid before the tenth of the month due, you are automatically suspended, and should you pay up, neither the Local nor §upreme Colonies are liable to you or your beneficiary should sickness or death occur before the expiration of thirty days" were • paid on February 7, the . suspension which occurred on January 10, had terminated and the certificate was in full force when the holder died on the 22nd of February. 3. INSURANCE—BURIAL CERTIFICATE.—In action on a burial certificate providing that "In, the event a member or a beneficiary sees fit .to employ an undertaker not designated as herein provided, * * * no liability shall attach against the order," a finding, on conflicting evidence, for appellee was not error. Appeal . from Pulaski Circuit Court, Second Division ; Richard M. Mama, Judge ; affirmed. J. • S. Ab.ercrombie; for appellant. Madrid B. Loftin and Joe.B. Norbury, for appellee. GRIFFIN SMITH, C. J. King David Acker, husband of appellee, died February 22, 1934. On September 13, 1932, he became a member of Golden Sun Colony No. 248, United , Order of Good Samaritans. Valid certificates in the, order entitled members to a' burial credit of $100 " as per Jaw." The contract contains this provision; "If your dues are not paid before the tenth of the month due, you are automatically suspended, and should you pay up, neither the local nor supreme colonies are liable to you
928 UNITED ORDER OF GOOD SAMARITANS v. ACKER. [193 or your beneficiary should sickness or death occur before the expiration of thirty days." It is alleged *by appellant that appellees intestate became automatically suspended prior to the time of his death because January dues were not paid until Feb-ruary 7. Appellee claims that all premiums were paid, and that the certificate was in full force. A jury was waived, and the case was tried before the circuit judge, who found for the plaintiff. Appellee testified that she paid all premiums on the certificate and that such payments were made to Jane Edwards, appellant's .financial secretary ; that the dates of payments were marked on receipt card; that the card was a printed form on which each month of the year appeared in sequence, with designated space for entry of amount paid, date of payment, and to whom paid. The card used in 1933 was introduced in evidence, showing indorsements to and including . December, followed in each instance.by the initials "J. E." There is this direction : "See that the Worthy Financial Secretary receipts you properly by putting the date of payment and his or her initials opposite the amount paid." Appellee further testified that when she presented the 1933 card for credits, in 1934, she paid for two months. Jane Edwards testified that the February dues were not paid, and that she did not make the entry on appel-lee's card; that appellee made two payments at one. time ; that January payment was not made, and that December payment was made in February. Ida Mar Boswell, secretary to the defendant, testified from a card record, showing that January dues were paid to her office on Januaky 20. On cross-examination she said that January payments were made on February 7, and that Jane Ed-Wards was the collector. This testimony is in conflict with that of. Jane Edwards.•It is also in conflict with the regular indors'ernent . or entry on the card, which shows that payment for December was apparently made December 10. Although appellant's contract directs members to see that the dates of payments are indorsed on receipt card, the financial secretary, whose duty it was to make the entries, did not in all cases show such dates.
ARK.] UNITED ORDER OF GOOD SAMARITANS V. ACKER. 929 Because of- this failure, 'there is no properly authenticated receipt record • to compare with appellant's contentions that payments were not made in a timely manner. If the December dues were paid, as shown by-receipt card bearing the initials of appellant's financial secretary, and if January and February dues were paid, then February payment was not delinquent on the 7tb, for it could be received at any time before the tenth. Acceptance of dues for January,: even though paid in February, would relate back to . January 1. Therefore, when two payments were made son Febrilary 7, one credit was retroactive . to . January. This payment could have been made without- forfeiture at any time before -the tenth, but if paid at all, the full 'month's obligation would be discharged, and the suspension which autoinatically became effective On the 10th expired, on February 10. If appel-lee's testimony is believed, payment for:February was made on February 7, prior to expiration of suspension on February 10: There • was testimony from which the trial court Could have found upon either theory. A second ground for reversal-urged by appellaht is that , appellee did hot give notice of the death of insured hhtil an unauthoried undertaker had been' emploed to bury the deeeased. Appellant's • exhibit "13 , " is a copy of proclaniation mailed to . members on Noveniber 30, 1933. It provides -that : "In the event a member or a beneficiary sees* fit to employ an undertaker not designated as herein provided, then- the credit as outlined above does not apply, and no liability shall attach against 'the . Order." Ida Afar Boswell testified . that:she Mailed a copy of this proclamation , to Ihe.home address of King David Acker, as shown by an office.card.: Appellee testified that she received all of her husband's mail, and that no such proclamation reached him. She also said that oh the day follOwing her 'husband's' death , she waif to appellant 's office, where she was tOldiliat becaiise the under--taker then holdirig .2•cker 's body Wohld : require'$25 before releasing it, appellant "couldn't do anything about it." Appellee also testified that while.discussing possession of the body she -was told .that the policy : nr certificate was in force.
930 [193 From this and other conflicting testimony, the trial court found for appellee. There was no error of law in so doing. Affirmed.
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