Baker v. Modern Woodmen of America

• Decision Date: 22 June 1909
• Citation: 140 Mo. App. 619,121 S.W. 794
• Parties: BAKER et al. v. MODERN WOODMEN OF AMERICA.
• Court: Missouri Court of Appeals

121 S.W. 794

140 Mo. App. 619

BAKER et al. v. MODERN WOODMEN OF AMERICA.

St. Louis Court of Appeals. Missouri.

June 22, 1909.

Rehearing Denied October 19, 1909.

1. APPEAL AND ERROR (§ 878)—REVIEW—INSTRUCTIONS AGAINST APPELLEE.

The correctness of an instruction unfavorable to plaintiffs cannot be considered, there having been an appeal only by defendant.

2. INSURANCE (§ 748)—FORFEITURE OF INSURANCE —"CONVICTION" OF INSURED—ABATEMENT.

Within the certificate of insurance and bylaws of a beneficiary society, providing that the certificate shall be void if insured be "convicted" of a felony, there was no conviction though he was tried for a felony, verdict was returned against him, and sentence of imprisonment imposed, appeal having been granted him, supersedeas bond having been approved, and he having been let to bail, with the result, under Rev. St. 1899, § 2698 (Ann. St. 1906, p. 1590), of suspending enforcement of sentence and judgment, and he having died pending action on the case by the Supreme Court, the "abatement" by his death not being simply of the appeal, but of the prosecution and the liability to prosecution, leaving the case as though no prosecution had ever been entered against him.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Ollie Baker and others against the Modern Woodmen of America. Judgment for plaintiffs. Defendant appeals. Affirmed.

Defendant, a fraternal beneficiary society, organized under the laws of the state of Illinois, a corporation authorized to furnish life indemnity or pecuniary benefits to the widows, heirs, and devisees of deceased members, or accident or permanent disability indemnity to members thereof, and authorized to do business in this state under the laws of the state relating to such societies, issued to one James Moat Baker a benefit certificate whereby it agreed to pay the sum of $2,000 upon his death to his beneficiaries, who in this case are his widow and minor son, plaintiffs herein, the latter suing by guardian and curator. It is stated in the certificate of membership that this sum is payable upon the death of James Moat Baker, who was a member of Cottonwood Camp of the order, only upon all the conditions contained in the application, certificate, and the by-laws of the society, as existing when the certificate issued, or as they may be thereafter modified, amended, or enacted, being fully complied with. The application for membership is made a part of the certificate, and the literal truth of all statements in it are warranted, it being provided that, if the application is not literally true, the benefit certificate shall be null and void; that it is issued in consideration of the warranties of agreements in the application and in consideration of the payment of assessments, and it is provided by the fifth paragraph of the certificate that if the member holding this certificate "shall be expelled from this society, or become intemperate in the use of alcoholic drinks; * * * or if he shall be convicted of a crime or felony, the punishment for which may be imprisonment in the penitentiary, after being adopted into this society, * * * then this certificate shall be null and void and of no effect, and all moneys which have been paid, and all rights and benefits which may have accrued, on account of this certificate, shall be absolutely forfeited, and this certificate become null and void." It is further provided in the eighth paragraph of the certificate that it shall be subject to forfeiture for any causes of forfeiture now or hereafter prescribed by the society by its by-laws.

The plaintiff, Ollie Baker, described as wife of James Moat Baker, is designated as the person to receive $1,000 of the $2,000, and Harrison Baker, the son, is designated as the person to receive $1,000. It is not considered necessary to set out other provisions of the application or of the certificate or of the by-laws of the defendant any further than to state that by section 12 of the by-laws it is specifically provided, among other things, that should any person, a member of the society, thereafter be convicted of a felony after being adopted in this society, "the punishment for which shall be imprisonment in a penitentiary, state prison, state reformatory, house of correction, or other state or federal penal institution, he shall, ipso facto, forfeit all payments made by him, and all rights as a member of this society, either social or beneficial, and his certificate shall thereby become absolutely null and void, without any action on the part of his local camp, the head camp, or of this society, or of any of the officers thereof; and the payment by him of any dues or assessments, thereafter made, or the acceptance thereof by the officers of his local camp, or of the head camp, or of this society, shall not have the effect of waiving such forfeiture or reinstating such certificate holder to any rights, benefits, or privileges as a member of this society."

Section 35 of the by-laws provides that no officer, nor any local camp officer, is authorized or permitted to waive any provision of the by-laws "which relate to the contract for the payment of benefits between the members and the society," and section 248 provides that no local camp, nor any of the officers thereof, shall have the right or power to waive any of the provisions of the by-laws of the society.

Section 275 provides that the clerk of the local camp is the agent of the camp and not the agent of the head camp, and that no act or omission on his part shall have the effect of creating a liability on the part of the society, or waive any right or immunity belonging to it.

Section 278 forbids the camp clerk to knowingly receive assessments or dues from any person, "who, after his adoption into this society, shall have been convicted of a crime or felony; punishment for which may be imprisonment in the penitentiary, provided, however, that the receipt, retention, or transmission to the head camp, of such dues or assessments shall not have the effect of waiving the forfeiture of the certificate of such member, or secure to him any rights whatever."

Section 335 reads: "If any person, after becoming a member of this society, shall be convicted of a crime or felony, the punishment for which may be imprisonment in the penitentiary, he shall by such conviction be expelled from the society without any action being taken by the local camp, executive council, head camp, or any of the officers of the society."

The certificate, application, and by-laws are all properly pleaded and are all in evidence. It was in evidence in the case that on March 4, 1906, James Moat Baker and one Billy Barnett were jointly tried in the circuit court of Pemiscot county, this state, a verdict of guilty of murder in the second degree found against both of them, and their punishment fixed at imprisonment in the penitentiary for a term of 10 years. On the 10th of March, and during the same term of that court, sentence was pronounced against these two defendants in accordance with the verdict of the jury. At the same term, and in due time, James Moat Baker filed his affidavit praying an appeal to the Supreme Court which appeal was granted, and thereupon Baker entered into bond. The bond recites that, "Whereas, the said defendant, James Baker, stands convicted in this court of the crime of murder in the second degree, and has been sentenced, under the order and judgment of this court, to imprisonment in the state penitentiary for a term of 10 years, from which judgment and sentence the said James Baker has been granted an appeal to the Supreme Court of the state of Missouri," that if he shall appear in the Supreme Court at the October, 1906, term thereof, to receive judgment in the appeal, and in the circuit court of Pemiscot county, if the Supreme Court shall so order, and at such time and place as the court shall direct, "and render himself in execution and obey every order and judgment which shall be made in the premises," then this bond to be void, otherwise to be in full force. The bond was approved by the circuit court, whereupon Baker was released from custody.

There is evidence in the case tending to show that the officers and members of the local camp of defendant at Cottonwood Point knew of the fact that Baker had been convicted of murder in the second degree and sentenced to a term of 10 years in the penitentiary and had appealed. There is also evidence in the case tending to prove that, after the taking of the appeal and while the same was pending in the Supreme Court, some question arose as to the rights of Baker as a member of defendant order and as to whether he should pay dues and assessments pending his appeal; that a committee or certain members of the camp informally decided that he should pay his dues and assessments, as any other member, pending his appeal. It is undisputed that Baker thereupon continued to pay all dues and assessments up to the day of his death, the local lodge or camp and the clerk thereof taking and accepting these dues and assessments from him precisely as from any other member. While reports of his payments of dues and assessments were made by the local clerk of the camp to the head clerk of the head camp in the usual and ordinary way, no mention appears to have been made, so far as the evidence shows, of the fact of his conviction, in any communication from the local camp to the head camp. Baker died of pneumonia on the 21st day of March, 1907, his case pending on appeal in the Supreme Court, and he never having been imprisoned in the penitentiary. On the 14th day of May, 1907, no suggestion of the death...