Baker v. Sovereign Camp, W. O. W.

• Citation: 125 S.W.2d 849,344 Mo. 230
• Decision Date: 08 March 1939
• Docket Number: 36169
• Parties: Rachel V. D. Baker, Appellant, v. The Sovereign Camp of the Woodmen of the World
• Court: United States State Supreme Court of Missouri

125 S.W.2d 849

344 Mo. 230

Rachel V. D. Baker, Appellant, v. The Sovereign Camp of the Woodmen of the World

No. 36169

Supreme Court of Missouri

March 8, 1939

Appeal from Clinton Circuit Court; Hon. Richard B Bridgeman, Judge.

Affirmed.

Elliott & Crouse and E. H. Gamble for appellant.

(1) The faith and credit clause (U.S. Const. Art. IV, Sec. 1) is not an issue in this case, because -- (a) Defendant's answer did not allege that the faith and credit clause compelled a decision in its favor, in the light of the Nebraska statutes and decisions, and stated no connection between the clause and its defense, and even if the clause had been properly pleaded it was abandoned in the trial court. Also the decision of that question was not necessary to and did not inhere in the trial court's decision. Quincy, etc Railroad Co. v. Sohney, 223 U.S. 705, 32 S.Ct. 517; Sohoney v. Ry. Co., 132 S.W. 1039; Miller v Connor, 157 S.W. 81; Bealmer v. Hartford Ins. Co., 220 S.W. 954; State ex rel. Wolfe v. Mo. Dental Board, 221 S.W. 70; Burns v. Prudential Ins. Co., 247 S.W. 159; Zach v. Fidelity, etc., Co., 257 S.W. 124; Corbett v. Lincoln, etc., Assn., 4 S.W.2d 824; Sutton v. Anderson, 31 S.W.2d 1026; McGill v. St. Joseph, 31 S.W.2d 1038; Schildnecht v. Joplin, 35 S.W.2d 35; Dietrich v. Brickey, 37 S.W.2d 428; Hohlstein v. St. Louis Roofing Co., 42 S.W.2d 573; Early v. Maccabees, 48 S.W.2d 890; State ex rel. Rose v. Webb City, 64 S.W.2d 597; Rechow v. Bankers Life Co., 73 S.W.2d 794; State ex rel. Karbe v. Bader, 78 S.W.2d 835; Ragsdale v. B. R. T., 80 S.W.2d 272; Bolin v. W. O. W., 98 S.W.2d 681; State ex rel. Power Co. v. Allen, 100 S.W.2d 868; Bushnell v. Mississippi, etc., Dist., 102 S.W.2d 871; Robertson v. Sec. Ben. Assn., 114 S.W.2d 1009. (b) Even if defendant had properly presented and not abandoned the constitutional question in the trial court, defendant did abandon it on appeal to the Kansas City Court of Appeals by making no effort to have the appeal transferred to this court, which alone has jurisdiction of such issues, and by defendant submitting the case in the Kansas City Court of Appeals on other grounds and without raising the constitutional question there. Wabash Ry. Co. v. Flannigan, 117 S.W. 722; Parker-Washington Co. v. Field, 219 S.W. 598; California Road Dist. v. Bueker, 248 S.W. 927; Sutton v. Anderson, 31 S.W.2d 824; McGill v. St. Joseph, 31 S.W.2d 1038; Bankers Mtg. Co. v. Lessley, 31 S.W.2d 1055; Schildnecht v. Joplin, 35 S.W.2d 35. (2) No such Nebraska statutes as are cited either in defendant's answer or on page 3 of defendant's brief in this court were produced in evidence. There are no such statutes. Moreover, defendant can derive no benefit from any statutes of Nebraska, which adopted no statute restricting the terms of fraternal policies until 1897, long after the Baker policy was issued. Neb. Comp. Stats. 1887, p. 268, ch. 6, secs. 198-205; Neb. Comp. Stats. 1891, secs. 442-450; Neb. Sess. Laws, 1895, p. 176, ch. 42; Neb. Sess. Laws, 1897, p. 226, ch. 47, secs. 1-24; Neb. Comp. Stats., 1897, ch. 43, secs. 349a-349w; Neb. Sess. Laws, 1899, p. 198, ch. 45; Neb. Anno. Stats., 1911, sec. 6636; Neb. Sess. Laws, 1913, p. 472; Neb. Comp. Stats., 1913, p. 930, sec. 3296. (3) The Haner and Trapp decisions are not in point with this case on the record made by defendant herein. Haner v. Grand Lodge, A. O. U. W., 168 N.W. 189; Trapp v. W. O. W., 168 N.W. 191; Garretson v. W. O. W., 243 S.W. 257; Sov. Camp, W. O. W., v. Wheeler, 101 So. 914; Sov. Camp. v. Wirtz, 254 S.W. 637; Wirtz v. Sov. Camp, W. O. W., 268 S.W. 438; Sov. Camp, W. O. W. v. Wheeler, 146 S.E. 914. (4) Of five Missouri decisions on W. O. W. Missouri policies containing the "payments to cease" provision, all except the first, the Garretson case, have upheld and enforced it. The reasoning of the four later cases is sound, and should be followed here. Laws, 1911, pp. 284-291; R. S. 1929, secs. 5732-5740, 6005; Westerman v. K. P., 94 S.W. 470; Schmidt v. Forresters, 129 S.W. 653; Garretson v. W. O. W., 243 S.W. 257; Neff v. W. O. W., 48 S.W.2d 564; Rechow v. Banker's Life, 73 S.W.2d 794; Bolin v. W. O. W., 98 S.W.2d 681; Bolin v. W. O. W., 112 S.W.2d 582; Baker v. W. O. W., 116 S.W.2d 513. (5) The power of a state over foreign corporations doing business therein is equal to the power of the state over domestic corporations. Orient Ins. Co. v. Daggs, 172 U.S. 557, 19 S.Ct. 281; Equitable Life v. Pettus, 140 U.S. 226, 11 S.Ct. 822; N. Y. Life Ins. Co. v. Cravens, 178 U.S. 389, 20 S.Ct. 962; Northwestern Natl. Life v. Riggs, 203 U.S. 243, 27 S.Ct. 126; Erie Railway Co. v. Tompkins, 58 S.Ct. 187.

Rainey T. Wells, Charles F. Keller and Harding, Murphy & Tucker for respondent.

The Nebraska decisions having held that the marginal note on which appellant's case rests is void, it is the duty of the Missouri courts under Section 1, Article IV, United States Constitution, to give full faith and credit to the Nebraska decisions so holding and defining the powers of the society. It is immaterial whether the contract is a fraternal certificate or an old line policy. A constitutional question is involved and it follows that the plea of estoppel is not available. The fact that no license was required of the society in Missouri when the certificate was written does not affect the constitutional issue. Sec. 1, Art. IV, U.S. Const.; Robertson v. Sec. Bene. Assn., 114 S.W.2d 1009; Garretson v. Sov. Camp, 210 Mo.App. 539, 243 S.W. 257; Rechow v. Ins. Co., 73 S.W.2d 794, 335 Mo. 668; Modern Woodmen v. Mixer, 267 U.S. 544, 45 S.Ct. 389; Royal Arcanum v. Green, 237 U.S. 531, 35 S.Ct. 724; Hartford Life Ins. Co. v. Ibs, 237 U.S. 662, 35 Sup. 692; Hartford Life Ins. Co. v. Barber, 245 U.S. 146, 38 S.Ct. 54; Hartford Life Ins. Co. v. Johnson, 248 U.S. 490, 39 S.Ct. 336; W. O. W. v. Shelton, 46 S.Ct. 207, 270 U.S. 628; Young v. Ins. Co., 211 S.W. 2, 277 Mo. 694; Van De Water v. Travelers, 77 F.2d 333; Wertheimer v. Assn., 64 F.2d 436; Supreme Council v. Galery, 278 F. 502; Parker v. Parker, 82 F.2d 576; Chicago & Alton Ry. Co. v. Wiggins Ferry Co., 119 U.S. 615; Canada Southern Railway Co. v. Gebhard, 109 U.S. 537; Relfe v. Rundle, 103 U.S. 226; Gaines v. Sup. Council Royal Arcanum, 140 F. 978; Haynes v. Fraternal Aid Assn., 34 F.2d 307; Wirtz v. Sov. Camp, 254 S.W. 637; Central Trust Co. v. Cas. Co., 139 U.S. 59; Steele v. Fraternal Tribunes, 74 N.E. 122; 2 Story on Constitution, secs. 1309-10, p. 176; Black on Constitution, pp. 248-252; 1 Willoughby on Constitution, p. 258; 12 C. J., p. 436; Dey v. Knights & Ladies of Security, 113 Kan. 86, 213 P. 1066; Messenheimer v. Fraternal Aid Union, 103 Kan. 552, 175 P. 679; Mooney v. Brotherhood of Ry. Trainmen, 162 Minn. 127, 204 N.W. 957; Dartmouth College v. Woodward, 4 Wheat. 636; McClement v. Supreme Court, 222 N.Y. 470, 119 N.E. 99; Sanger v. Upton, 91 U.S. 58; Wall v. Bankers Life Co., 208 Iowa 1053, 223 N.W. 257; Supreme Lodge, N. E. O. P. v. Hines, 82 Conn. 315, 73 A. 791; Supreme Colony, U. O. P. F. v. Towne, 87 Conn. 644, 89 A. 264; Palmer v. Welch, 132 Ill. 141, 23 N.E. 412; Grimme v. Grimme, 198 Ill. 265, 64 N.E. 1088; Supreme Council A. L. H. v. Green, 71 Md. 263, 17 A. 1048; Supreme Council, R. A. v. Brashears, 89 Md. 624, 43 A. 866; United Order, G. C. v. Merrick, 165 Mass. 421, 43 N.E. 127; Gibson v. Imperial Council, 168 Mass. 391, 47 N.E. 101; Larkin v. Knights of Columbus, 188 Mass. 22, 73 N.E. 850; Tepper v. Supreme Council, 59 N.J.Eq. 321, 145 A. 111; Bockover v. Life Assn. of America, 77 Va. 85; Smoot v. Bankers Life Assn., 138 Mo.App. 438, 120 S.W. 719; DeVore-Norton v. Brotherhool of Locomotive Firemen, 132 Okla. 130, 270 P. 14; M. W. A. v. Crudup, 51 P.2d 718; Sov. Camp W. O. W. v. Smith, 176 Okla. 545, 56 P.2d 408; Wilson v. W. O. W., 64 P.2d 1064; Korn v. Mutual Assur. Assn., 6 Cranch 192, 3 L.Ed. 195; Kirk v. Fraternal Aid Assn., 95 Kan. 707, 149 P. 1066; Head and Amory, v. Ins., 2 Cranch, 127.

OPINION

Douglas, J.

The question for decision in this case is whether full faith and credit was given to the public acts, records and judicial proceedings of the State of Nebraska as required by Article IV, Section 1 of the Constitution of the United States.

After a judgment for defendant in the circuit court, plaintiff appealed to the Kansas City Court of Appeals which reversed the judgment and remanded the cause with directions to enter a new judgment as prayed in plaintiff's petition. [Baker v. Sovereign Camp, W. O. W. (Mo. App.), 116 S.W.2d 513.] One of the judges of the appellate court dissented on the ground that the majority opinion conflicts with Robertson v. Security Benefit Assn., 342 Mo. 284, 114 S.W.2d 1009, and with other cases and caused the appeal to be certified to this court. We determine this case as if it had been directly appealed to this court. [Const. of Mo. as Amended 1884, Art. 6, Sec. 6.]

This is an action to recover the benefits provided in a certificate issued on December 23, 1896, by respondent, a fraternal beneficiary association, to W. C. Baker, husband of the beneficiary. The insured paid all assessments up to and through the month of October, 1931. Thereafter he made no further payments. Under the laws of respondent he became automatically suspended on December 31, 1931, for nonpayment and remained so until his death on August 31, 1932.

The certificate specifically provided that it was issued subject to all the conditions printed thereon and to all conditions named in the constitution and laws of the society. On its margin was stamped "Payments to cease after 30 years." Section 82 of the Laws adopted by the society in 1895 stipulated that when the certificate of a member who had joined the society, as did Baker, between the ages of 16 and 33, had been in force and binding for 30 years,...