Keily v. Knights of Father Matthew
| Decision Date | 31 December 1913 |
| Citation | 162 S.W. 682,179 Mo.App. 608 |
| Parties | MAURICE KEILY et al., Respondents, v. KNIGHTS OF FATHER MATTHEW, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. George C. Hitchcock Judge.
Affirmed and remanded.
Ryan & Thompson for appellant.
(1) The trial court was right in sustaining the demurrer at the close of plaintiff's case, as the evidence, oral and written uncontradicted and unimpeached, was conclusive that Mr. Keily had resigned. A verdict for plaintiff could not have been rested on any evidence, but would have been based purely on conjecture. Richey v. Woodmen of the World, 163 Mo.App. 235; Newland v. Modern Woodmen of America, 168 Mo.App. 311. (2) If this court will consider the question raised at the trial, and decided adversely to plaintiff touching the admission of testimony that there was a custom requiring a resignation to be in writing, and formally accepted by the council, then we submit the court's ruling was correct. The order being a mere voluntary association a member may at any time sever his connection therewith. Lewin v. Grand Lodge, etc., 104 Mo.App. 20; State ex rel. v. Grand Lodge, etc., 78 Mo.App. 546; Miller v. Grand Lodge, etc., 72 Mo.App. 505; Stewart v. Supreme Council, etc., 36 Mo.App. 319; Borgraefe v. Knights of Honor, 26 Mo.App. 218; 1 Bacon on Benefit Socities, sec. 111.
Johnson, Rutledge & Lashly for respondent.
(1) Where it is conceded that plaintiff has made a prima-facie case in a suit on a benefit certificate and where only conflicting evidence is developed on defendant's case on a defense that the member resigned, the case must go to the jury. Troll v. Home Circle, 161 Mo.App. 719; Boone v. Railroad, 20 Mo.App. 235; Hirsch v. Grand Lodge, 78 Mo.App. 361; Jefferson v. Life Assn., 69 Mo.App. 133; Dawson v. Wombles, 111 Mo.App. 540; Reynolds v. Hood, 209 Mo. 618; Gannon v. Gas Light Co., 145 Mo. 514; Hegenburg v. Frisco, 147 S.W. 193. (2) Abandoned pleadings of the opposite party are proper evidence as admissions. The abstract shows that the abandoned answer offered in this case conceded that the deceased was a member until November first, or after the date on which it is claimed by defendant he resigned. Spurlock v. Railroad, 125 Mo. 104; Overton v. White, 117 Mo.App. 576; Meriweather v. Knapp, 224 Mo. 617. (3) A custom of receiving only written resignations and officialy acting upon them only in open meetings which had been adhered to for twenty years is as binding on a fraternal society as if embodied in a by-law. Especially is such the case where (as here) there is no by-law or other regulation on the subject in issue. State v. Grand Lodge, 70 Mo.App. 456; 5 Am. & Eng. Ency. Law, 91; Henry v. Jackson, 37 Vt. 431; 10 Cyc. 354. Abandonment of an insurance contract is largely one of intent. Insurance benefits in a fraternal order are dependent on the status of one as a member. 3 Cooley's Briefs on Insurance, 2835; Hyatt v. Legal Protective Assn., 106 Mo.App. 610. The status of a member once fixed is presumed to continue. The issuance of a benefit certificate is prima-facie proof of good standing. Stewart v. Supreme Council, 36 Mo.App. 329; 3 Cooley's Briefs on Insurance, 2425.
Defendant appeals from an order of the court setting aside a judgment of involuntary nonsuit entered against plaintiff. The suit is on a certificate of life insurance issued by defendant, a mutual benefit society.
The sole defense relied upon in the answer is that the insured member voluntarily resigned his membership in the order shortly prior to his death. This defense, however, is denied in the reply and a sharp issue is made concerning it. Plaintiffs are children of the insured member, and it is conceded that they are the proper beneficiaries and as such entitled to recover, provided the insurance contract obtained at the time of the death of their father.
It appears that at the trial plaintiffs introduced in evidence the benefit certificate issued by defendant order to their father several years before, and established the fact of his death, which is conceded. A prima-facie case for them having thus been made, defendant assumed the burden of establishing the defense set forth in its answer--that is, that David Keily, the insured member, resigned from the order in open meeting of his council on October 27, 1910. It appears that on November twelfth the insured took sick and departed this life November 24, 1910. The evidence introduced by defendant is quite convincing that Keily resigned his membership in the order, as insisted in the answer, but, of course, is not conclusive on the court to that effect, and especially is this true when considered in connection with that given for plaintiffs in rebuttal.
It appears that at a recent convention of the order, the Knights of Father Matthew, the rates for insurance had been readjusted and the new rating fell with a heavy hand upon the older members. Keily, the insured, was an elderly man and had been a member of the order for many years. According to the new rates he would be required to pay on his $ 2000 insurance an assessment of about $ 7.28 per month, whereas theretofore he had paid but $ 3.58 on the same. He and others of the older membership affiliated with St. Bridget's Council in St. Louis were greatly displeased because of this. On the night of October 27, 1910 this matter was freely discussed at the meeting of St. Bridget's Council, of which Keily was a member, and he participated in the discussion. The record reveals that the meeting was more or less a stormy one and a number of the members expressed themselves with considerable force and vehemence on the subject. Mr. Keily was a man of determination and spoke with emphasis suggesting that the recent rerating was unjust to himself and many of the others situated like he. Finally, during the meeting, Mr. Keily went forward to the desk of the secretary and paid his last previous assessment, it is said that falling due on September thirtieth. A number of witnesses on the part of defendant who were present say that Mr. Keily then declared that he resigned from the order and would no longer affiliate with it; that he turned around after paying the financial secretary and waved his passbook over his head as if greatly vexed and openly asserted his resignation from the order in open meeting. However, it does not appear that the meeting acted upon such resignation, if it was offered, as the presiding officer did not lay it before the council. But the secretary made a minute during the meeting to the effect that brother David Keily resigned from the order and spread this upon the records of the council a few days thereafter. Although this minute was afterwards spread upon the record, it was not read to the council until at a meeting after the death of the insured.
There is evidence, too, on the part of defendant that some of the members besought the insured not to resign from the order but to continue as a social member even though he abandoned his insurance. It is said that Mr. Keily paid no heed to these friendly suggestions and said that he was "done." Several witnesses for defendant having stated the facts to have transpired at the meeting of the council as above set forth, plaintiffs introduced others in rebuttal. One of these witnesses introduced by plaintiffs is an eminent expert on handwriting, who testified that upon carefully inspecting the passbook of David Keily, the insured member, it appeared the last assessment paid by him, according to the entry in the passbook, was on October 28, 1910 instead of October 27, the date of the meeting. Moreover, the insured's passbook itself bearing the date was introduced in evidence and exhibited to the jury. This evidence, of course, tends in a way to contradict defendant's theory that Keily paid his last assessment on October 27 in open meeting, and tends to show he acted the part of a member thereafter. Plaintiffs likewise introduced two witnesses, members of the order, who were present at the meeting and were, no doubt, so situate as to observe and know what occurred there in respect of remarks addressed openly to the meeting as such, that is in contradistinction to private remarks or conservation. One of these witnesses, Mr. John T. Hunt, stated that he, too, participated in the discussion of the rates and that he sat within three or four feet of Mr. Keily throughout the evening. Concerning the asserted resignation of Keily from the order, Mr. Hunt says he heard no such remark. He saw Mr. Keily leave his chair and walk forward to the secretary's desk, which, it appears, was situate about fifteen or twenty feet distant from the witness. This witness says, "He walked up to that table and then he said to the secretary--I didn't hear, but he took his book as he turned around, and he made a kind of what I thought a defiant swing with his passbook, and came back and sat down, I think a little in advance of where he was seated before." At another place the same witness says, "I didn't hear what Mr. Keily said at that table, because it wasn't said in a tone loud enough for me to hear. I was distant from that table, I should judge, about fifteen or twenty feet." It appears from this that the witness had his eye on Mr. Keily all of the time and it may be inferred too that he was situate near enough to him to hear an audible open announcement made in the meeting as for its benefit, though not so situate as to hear a private remark addressed by Keily to the secretary.
The witness Flanagan, introduced in rebuttal by plaintiffs testifies positively that Mr. Keily did not say he resigned from the order. This witness says, "I sat...
To continue reading
Request your trial