Achtenberg v. Sovereign Camp, W. O. W.
| Decision Date | 31 October 1940 |
| Docket Number | 36636 |
| Parties | Hannah F. Achtenberg v. Sovereign Camp of the Woodmen of the World, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.
Reversed and remanded (with directions).
Rainey T. Wells and Harding, Murphy & Tucker for appellants.
(1) The trial court erred under Article IV, Section 1 of the Constitution of the United States in applying the law of Missouri instead of the law of Nebraska, under which appellant was created and to which it owes its existence, in determining the controversy here presented, notwithstanding the fact that the beneficiary certificate here involved was issued and accepted and the dues and assessments required to keep it in force were paid in Missouri. Sovereign Camp W. O. W., v. Bolin, 59 S.Ct. 35; Modern Woodmen of America v. Mixer, 267 U.S. 544, 45 S.Ct. 389, 69 L.Ed 783; Hartford Life Ins. Co. v. Barber, 245 U.S. 146, 38 S.Ct. 54, 62 L.Ed. 208; Hartford Life Ins. Co. v. Ibs, 237 U.S. 662, 35 S.Ct. 692, 59 L.Ed. 1165; Supreme Council of the Royal Arcanum v. Green, 237 U.S. 531, 59 L.Ed. 1089; Clark v. Security Benefit Assn., 121 S.W.2d 148; Robertson v. Security Benefit Assn., 114 S.W.2d 1009; Rechow v. Bankers Life Ins. Co., 335 Mo. 668, 73 S.D. (2d) 794; Garretson v. Sov. Camp, W. O. W., 210 Mo.App. 539, 243 S.W. 257. (2) The trial court erred under Article IV, Section 1 of the Constitution of the United States in refusing to accord full faith and credit to appellant's charter granted under the general laws of Nebraska as such charter and the laws under which it was granted have been interpreted by the Supreme Court of Nebraska in the case of Fowler et al. v. Sovereign Camp of the Woodmen of the World, 106 Neb. 192, 183 N.W. 550. Sovereign Camp, W. O. W. v. Bolin, 59 S.Ct. 35; Supreme Council of the Royal Arcanum v. Green, 237 U.S. 531, 35 S.Ct. 724, 59 L.Ed. 1089; Hartford Life Ins. Co. v. Barber, 245 U.S. 146, 38 S.Ct. 54, 62 L.Ed. 208. (3) The trial court erred under Article IV, Section 1 of the Constitution of the United States in refusing to hold that the decision and judgment of the Supreme Court of Nebraska in the case of Fowler et al. v. Sovereign Camp of the Woodmen of the World, supra, having been rendered in a suit brought for the benefit of a class to which Abraham D. Achtenberg belonged, and being a final adjudication of a controversy as to which appellant stood in judgment for its members, is res adjudicata and binding upon respondent as to every issue in the present case concerning (a) the validity of Section 60 of the 1919 Constitution, Laws and By-Laws; and (b) the applicability of the aforesaid Section 60 to the instant beneficiary certificate.
Achtenberg & Achtenberg for respondent.
(1) Appellant's assignments of errors 5 and 6 deal with the issues in Count II which have been withdrawn through the filing of a remittitur by respondent. (2) Appellant's assignments of errors 1, 2, 3, 4 and 7 find no support in the record. The construction of Article IV, Section 1, of the Constitution of the United States is not involved in this cause, because: (a) The record does not support appellant's contention that the trial court did not give full faith and credit to the case of Fowler v. Sovereign Camp of the Woodmen of the World, 102 Neb. 562, and (b) The Fowler case, supra, is not a final adjudication of the issues in the case at bar. The sole issue in the Fowler case with the legality of Section 60 of the Amended By-laws of 1919, whereas the sole issue in the case at bar is whether or not said Section 60 is applicable to the certificate sued on. In order to constitute a former adjudication, it must affirmatively appear that the matter in dispute was put in issue and tried. Drainage District v. Turney, 235 Mo. 94, 138 S.W. 12; Deck v. Wofford, 282 Mo. 564, 222 S.W. 443; Loud v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629; Ridgley v. Stillwell, 27 Mo. 132; Dennis v. Grand River Drain. Dist., 118 S.W.2d 113; Kelly v. Cape Girardeau, 260 S.W. 801; Barkhoefer v. Barkhoefer, 93 Mo.App. 373; Johnson v. Johnson, 56 S.W.2d 1069. Appellant, not having pleaded that the applicability of said Section 60 to the certificate sued on was adjudicated in the Fowler case, cannot raise it now. Johnson v. Johnson, 56 S.W.2d 1069; Rutherford v. Farrar, 118 S.W.2d 83. (3) This cause having been tried by the court, without a jury, who rendered a general judgment and no finding of facts nor declarations of law having been asked or given, the presumption is that the court decided the case according to the correct theory of the law and judgment must be affirmed if there is any evidence to support it. Perrin v. Johnson, 124 S.W.2d 551; Weisenborn v. Rutledge, 121 S.W.2d 309; Dennis v. Grand River Drain. Dist., 118 S.W.2d 113; Cave v. Mo. Ins. Co., 102 S.W.2d 755; Manufacturers Finance Trust v. Collins, 58 S.W.2d 1004; School Dist. of Independence ex rel. Whalen v. Wilcox, 58 S.W.2d 1009; Chuning v. Hinkle, 49 S.W.2d 257; Underwood v. Oregon County, 8 S.W.2d 597. (4) Appellant's assignment of errors and points and authorities do not challenge the sufficiency of the evidence to support the judgment. Absent such assignment, appellate courts do not review the evidence. Massey-Harris Co. v. Rich, 122 S.W.2d 868; Powell v. Brosnahan, 115 S.W.2d 148; State ex rel. v. Trimble, 39 S.W.2d 375; Gottschalk v. Wells, 274 S.W. 399; Flack v. Ball, 240 S.W. 469; Hiemenz v. Harper, 204 S.W. 723; Kenage v. Kenage, 3 S.W.2d 1041. Judgment is for the right party. Neff v. Sov. Camp, W. O. W., 226 Mo.App. 899, 48 S.W.2d 564; Baker v. Sov. Camp, W. O. W., 116 S.W.2d 513.
Bradley, C. Hyde and Dalton, CC., concur.
The petition in this cause was in two counts. The first was to recover on a beneficiary certificate or policy for $ 1,000, plus $ 100 for monument. Plaintiff is the widow of the insured and is the named beneficiary in the policy. There was a provision in the policy that it would be paid up in 25 years, and the second count was to recover back monthly assessments ($ 1.38 each) paid subsequent to September 16, 1922, the expiration date of the 25 years. The claim based on the second count was set off to plaintiff by order of the probate court. A jury was waived and the trial court found for plaintiff on both counts, and appeal was taken to the Kansas City Court of Appeals. Plaintiff filed in the Court of Appeals a full remittitur as to the judgment on count No. 2, and that count passed out of the case.
On motion of defendant the Court of Appeals made an order transferring the cause to this court on the theory that the construction of the full faith and credit clause of the Federal Constitution, Sec. 1, Art. 4, is involved.
Plaintiff contended that the construction of the Federal Constitution is not involved, and that jurisdiction of the appeal was in the Court of Appeals and resisted defendant's motion to transfer. It is our duty to determine jurisdiction, when the question occurs, whether raised or not by the parties. [Perkins v. Burks et al. (Mo.), 61 S.W.2d 756-7, and cases there cited.]
The policy was issued September 16, 1897, to Abraham D. Achtenberg, who was a member of a lodge or camp of defendant in St. Joseph, Missouri, and the policy was there applied for and there delivered. It was payable upon the death of the insured, but there was stamped upon its face, "payments to cease after 25 years." The paid up provision was by authority of a by-law of defendant adopted in 1895, and as amended in March, 1897, provided, among other things, that thereafter one, over 30 and under 40 years old, joining the defendant order, would, if he paid his dues, have his policy paid up at the end of 25 years from date of issue. Such by-law was held, by the Supreme Court of defendant's domicil State (Nebraska) to be ultra vires and void. [Trapp et al. v. Sov. Camp, W. O. W., 102 Neb. 562, 168 N.W. 191.] Had there been no remittitur as to the judgment based on count No. 2, there would be no question but that jurisdiction of the appeal would be in this court , but has this court jurisdiction of the appeal from the judgment on count No. 1?
On its face, the present policy provided for the payment to the beneficiary, upon insured's death, of $ 1,000 and further provided for the payment of $ 100 for the placing of a monument at his grave. Insured died February 16, 1937, and was, at the time of his death, in good standing in defendant order. Proofs of death were duly made, and demand made for the face amount of the policy, plus the $ 100 for monument. Defendant refused to pay as demanded, but offered (did not tender) to pay $ 519.24, and the offer was refused.
When the policy was issued the rate thereon was 75 cents per month. Thereafter, the monthly rate was increased from time to time until it was $ 1.38 in 1919. Effective December 31 1919, Sec. 60 of defendant's amended by-laws provided for a rate based upon the attained age of its members on January 1, 1920. On that date, insured's age was 62, and, under the new rate, his assessment for all benefits under his policy was $ 61.54 annually, or $ 5.33 monthly. However, in Sec. 60, there was a provision whereby a member could continue to pay his then rate, and, if he so continued, he relinquished his right to old age disability benefits and the monument feature. And, in addition to these relinquishments, there was deducted from the face amount of the policy, such an amount as would "meet and discharge the deficiency created by...
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