Tuite v. Supreme Forest Woodmen Circle

• Decision Date: 12 June 1916
• Parties: MRS. C. E. TUITE, Appellant, v. SUPREME FOREST WOODMEN CIRCLE, Respondent
• Court: Kansas Court of Appeals

187 S.W. 137

193 Mo.App. 619

MRS. C. E. TUITE, Appellant, v. SUPREME FOREST WOODMEN CIRCLE, Respondent

Court of Appeals of Missouri, Kansas City

June 12, 1916

Appeal from Jackson Circuit Court.--Hon. Frank G. Johnson, Judge.

AFFIRMED.

Judgment affirmed.

Noyes & Heath for appellant.

Harding Murphy & Harris for respondent.

OPINION

JOHNSON, J.

--This is an action on a death benefit certificate for $ 1100 issued April 30, 1900, by defendant, a fraternal beneficiary society incorporated in Nebraska, to Michael T. Tuite, a resident of Missouri. Plaintiff, the wife of Tuite, was designated in the certificate as the beneficiary. Tuite was a member of a local lodge of the order in Kansas City and paid all dues until his death which occurred at the Soldiers' Home in Leavenworth, Kansas, on August 6, 1913.

The answer alleges and the proof shows that when Tuite joined the order and applied for the certificate, and at all times thereafter, defendant was a fraternal beneficiary society incorporated in Nebraska and regularly licensed to do business as such in this State. Plaintiff argues that the contract in question does not fall within the purview of the laws of this State relating to fraternal beneficiary societies for the reason that the laws of Nebraska and the charter of defendant authorized the inclusion of "adopted children . . . or other relatives" among the classes eligible to designation as beneficiaries in death benefit certificates. The statutes of this State provide that "payments of death benefits shall be to the families, heirs, blood relatives, affianced husband or affianced wife of, or to persons dependent upon the member." [Sec. 7190, R. S. 1909.]

Plaintiff invokes the rule we recognized in Dennis v. Modern Brotherhood, 119 Mo.App. 210, 95 S.W. 967, that a foreign association would not be accorded the benefits of the laws of this State relating to fraternal beneficiary societies where there was a substantial difference between the classes of beneficiaries such association was authorized by its charter to recognize as eligible and the classes mentioned in our own statutes. But that rule will not aid plaintiff. A fraternal society incorporated in this State may designate an adopted child of the member as the beneficiary in a death benefit certificate since such child being an heir of the member (Art. 1, Ch. 20, R. S. 1909), belongs to a class specifically mentioned in the statute. And we find the class "other relatives" appears by its context to refer to blood relatives and, therefore, is identical with a class mentioned in our statute. We hold the proof of defendant sufficient to warrant us in treating the contract and the rights of the parties thereunder as being governed by the laws and rules relating to fraternal beneficiary insurance.

The principal defense is that the certificate is void because its execution by defendant was ultra vires the power conferred upon defendant by its charter from the State of Nebraska. The laws of that State forbid the issuance of a death benefit certificate to any person over fifty-five years of age and defendant's charter fixed the maximum age at fifty-two years. In his application dated April 18, 1900, Tuite declared he was "fifty years of age at my nearest birthday" and "was born on the 29th day of September, 1850, in Ireland."

An investigation made after his death convinced defendant that he had intentionally misrepresented his age which, at the time of his application, was sixty or sixty-one years, instead of fifty, but, as stated, the defense is that the certificate is ultra vires and void and not that it was merely voidable on the ground of false and fraudulent representations respecting the age of the insured. As to such defense there could be no waiver or estoppel since defendant's officers, even if they had afterward been informed of the falsity of the representation, could not have bound the society by waiver or estoppel to a contract which its charter from the State would not authorize. [Edmonds v. Modern Woodmen, 125 Mo.App. 214, 102 S.W. 601; Steele v. Fraternal Tribunes, 215 Ill. 190, 74 N.E. 121; State v. Bankers Union, 71, Nebr. 622; Gray v. Benefit Ass'n, 111 Ind. 531.]

If Tuite was older than fifty-two years at the time he applied for the certificate and membership, plaintiff has no cause of action on the certificate which would be void, and the only remedy she could enforce against defendant would be to recover back the money Tuite had paid defendant for insurance.

The answer alleged the total amount so paid was $ 270.30, which, with interest, defendant offered to refund and has paid into court. At the trial the parties introduced evidence on the issue of Tuite's age when he made the application and the jury were instructed in substance that plaintiff would be entitled to recover if he "was under the age of fifty-two at the time he made application and became a member of the defendant association," and could not recover if his age was over fifty-two at that time. The jury decided this issue in favor of plaintiff but the court, on hearing the motion for a new trial set the verdict aside for the reason, stated in the order, "that the court erred in admitting in evidence over the objection of the defendant, self-serving declarations of Michael Tuite, the insured, in the contract sued on."

Plaintiff appealed from the order and judgment granting a new trial.

Defendant introduced in evidence the laws of Nebraska and its own charter and by-laws which show that defendant was not authorized to issue a death benefit certificate to any person over fifty-two years of age and also introduced both documentary and oral evidence which tended to show that Tuite was over sixty years old when he made the application. The muster roll of Company "I" 169th New York Volunteers showed his enlistment as a private on September 9, 1862, and that he was twenty-three years old. Plaintiff admitted that a witness named in an application for a continuance would identify a record book kept at a parish church in Ireland and that the book would show that Tuite was born September 29, 1836. A number of sworn statements made by Tuite at different times to secure a pension, and an increase thereof, refer to the date of his birth as September 29, 1836.

There was more evidence of the same kind introduced by defendant and on the other hand there is evidence offered by plaintiff tending to prove that Tuite's age was not misstated in the application. Plaintiff and two other witnesses were permitted, over the objection of defendant, to testify that Tuite had told them that he was only fourteen or fifteen years old when he enlisted in 1862, and had made oral declarations about his age which, if true, would corroborate his representation in the application. And further, plaintiff was allowed to show by several prominent citizens of Kansas City who had known Tuite that judging from his appearance his age was not over fifty years at the time of application.

The evidence introduced by defendant of declarations...