W. C. Rutherford, Plaintiff in Error, v. The State of Florida, Defendant in Error, 76 Fla. 224

Browne, C. J. W. C. Rutherford was convicted in the Court of Record of Escambia County for soliciting membership for the Western Funeral Benefit Association, a fraternal association that is not authorized to do business in the State, and seeks reversal here on writ of error.

A jury was waived and the case tried on an agreed statement of facts, which is as follows: “That the defendants are organizers and agents of the Order of Owls and members of various local nests of that order; that the persons solicited by said organizers who become members of the Owls are issued death benefit certificate by the Western Funeral Benefit Association, a fraternal benefit association of Pt.

Louis, Missouri, which association has not complied with the laws of Florida relative to transacting business in said State, if the local Nest of Owls, of which they are members, by vote decides to enroll its members with said Western Funeral Benefit Association; that said local Nest of Owls has held several meetings and by vote accepted divers persons solicited by each of said defendants as members and rejected others of such persons as members, and said local Nest of Owls at a meeting theretofore has voted to enroll said local Nest for insurance benefits in said Western Funeral Benefit Association, but nothing further has been done, no enrollment forwarded to the Western Funeral Benefit Association and no certificates issued by said Association to any member of said Nest, or to the Nest; that the defendants used as an argument for membership in the Owls to those persons whom they solicited to join statements as to the benefits and desirability of insurance in the Western Funeral Benefit Association, stating that for seventy-five cents a month the local Nest dues a $250.00 death benefit certificate in the Western Funeral Benefit Association could be procured, and that for fifteen cents more per month, making a total of ninety cents per month the local dues would he paid and a $500.00 deatji benefit certificate could be procured in the Western Funeral Benefit Association if the local lodge so voted; that the defendants produced to various persons solicited by them sample copies of the death certificate issued by the Western Funeral Benefit Association; that the pamphlet attached to this statement was circulated by the defendants and copies thereof given by them to persons solicited by them; that the local Nest of the Order of Owls in Pensacola is a secret order within the exceptions to the laws of Florida relating to fraternal benefit insurance associations; that the defendants collected from persons solicited to join the order of Owls who desired to join $6.00 and issued receipts as per form attached hereto; that $6.00 was the compensation to the defendants as organizers and no part of this amount goes to the local or supreme lodge or Western Funeral Benefit Association; that the person making application is voted upon by the local nest and if he is rejected the $6.00 is returned to him; that defendants are not employed by the Western Funeral Benefit Association, nor paid anything by said Association. “That W.

G. Cochran, a citizen of Pensacola, will testify that A. D. Alvin stated to him that he represented the Western Funeral Benefit Association when soliciting him to join the Owls. Alvin will testify that he did not tell Mr. Cochran this, hut will admit that he solicited Mr. Cochran to join the Owls.” It is contended that the finding is not supported by the evidence, and is in disregard of the

section of the statute exempting certain secret orders from its provisions. It is true that from the agreed statement of facts, it appears that the Order of Owls is not engaged in writing insurance for its members, but as the information does not charge the Owls with violating the law, the exemption claimed in

Section twenty-nine of the Act is not applicable to the facts in this case. The Plaintiff in Error was soliciting membership in the Owls, and the nest for which he was soliciting had “theretofore voted” to enroll its members for insurance benefits in the Western Funeral Benefit Association. He informed persons whom he solicited, that upon payment of the local nest dues of 75 cents a month, a $250.00 death benefit certificate in the Western Funeral Benefit Association could be procured, and that for 15 cents more per month a $500.00 death benefit certificate could be procured.

The dues of a member of the Owls are seventy-five cents a month, upon payment of which the member procures a death benefit certificate in the Western Funeral Benefit Association for two hundred and fifty dollars. He may, however, procure a death benefit certificate for five hundred dollars upon payment of fifteen cents more a month, but this does not, like the provision for a death benefit of two hundred and fifty dollars, follow as a necessary result of joining the Owls.

The provision for a two hundred and fifty dollar death benefit certificate attaches to membership in the Owls without any further act of the members, and all who became members of the local Nest upon the solicitation of the defendants, procured insurance in the Western Funeral Benefit Association,, by the mere act of joining the Owls.

The Plaintiff in Error concedes that it would be a violation of law to solicit directly for membership in the Western Funeral Benefit Association, but contends that the statute does not prohibit soliciting persons to join the Owls, notwithstanding that by so doing they become enrolled in the Funeral Association.

The local Nest of Owls of Pensacola having arranged to enroll all of its members in the Western Funeral Benefit Association, and the Plaintiff in Error having solicited persons to join such local Nest, we cannot avoid the conclusion that he was, indirectly if not directly soliciting membership in the Western Funeral Benefit Association, for its follows as a consequence of persons joining such Nest of Owls, that they thus became insured in the Western Funeral Benefit Association. We think the evidence justified the conviction, and the judgment is affirmed. Whitfield,, Ellis and West, J. J., concur.

Taylor, J., dissents.