Bange v. Supreme Council Legion of Honor of Missouri

• Decision Date: 02 December 1913
• Parties: MINNIE E. BANGE, Appellant, v. SUPREME COUNCIL LEGION OF HONOR OF MISSOURI, Respondent
• Court: Missouri Court of Appeals

161 S.W. 652

179 Mo.App. 21

MINNIE E. BANGE, Appellant, v. SUPREME COUNCIL LEGION OF HONOR OF MISSOURI, Respondent

Court of Appeals of Missouri, St. Louis

December 2, 1913

Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.

REVERSED AND REMANDED.

James J. O'Donohoe for appellant.

(1) It is well settled that proof of the issuance of the beneficiary certificate and death of the member establish a prima-facie case. Winn v. Modern Woodmen, 157 Mo.App. 1; Bacon Ben. Societies and Life Ins. (3 Ed.) sec. 414; Mulroy v Knights, 28 Mo.App. 463; Stewart v. Legion of Honor, 36 Mo.App. 319; Force v. Knights of Honor, 41 Mo.App. 106; Chadwick v. Triple Alliance, 56 Mo.App. 478; Gruwell v. Knights and Ladies of Security, 126 Mo.App. 496; McReynolds v Railroad, 115 Mo.App. 680; O'Malley v. Railroad, 113 Mo. 319; Boon v. Railroad, 20 Mo.App. 235; Gibson v. Zimmermann, 27 Mo.App. 90. The defendant's amended answer did not state facts sufficient to constitute any defense, and hence the plaintiff's objections to the introduction of any evidence on the part of the defendant should have been sustained. The court erred in refusing plaintiff's peremptory instruction at the close of the case. Burchard v. Western Commercial Travelers Assn., 139 Mo.App. 606; Gruwell v. Knights and Ladies of Security, 126 Mo.App. 496; Chadwick v. Order of Triple Alliance, 56 Mo.App. 474; Force v. Knights of Honor, 41 Mo.App. 117; Mulroy v. Knights of Honor, 28 Mo.App. 467; Siebert v. Order of Chosen Friends, 23 Mo.App. 268; Dazell v. Ins. Co., 176 Mo. 253; May v. Crawford, 150 Mo. 504. (2) The defendant's law in reference to suspension for nonpayment of contributions is not self-executing. Bange v. Legion of Honor, 153 Mo.App. 154; Bange v. Legion of Honor, 128 Mo.App. 461; Mulroy v. Knights of Honor, 28 Mo.App. 468. The recorder of the local council had power to and did waive the prompt payment of contributions. Jones v. Ins. Co., 155 S.W. 1106; Modern Woodmen v. Angel, 127 Mo.App. 94; Andre v. Modern Woodmen, 102 Mo.App. 377; Cauveren v. Ancient Order of Pyramids, 98 Mo.App. 433; Courtney v. Relief Assn., 101 Mo.App. 261; Frame v. Woodmen of the World, 67 Mo.App. 127; Puhr v. Grand Lodge, 77 Mo.App. 47; Lewis v. Benefit Assn., 77 Mo.App. 586; McMahon v. Maccabees, 151 Mo. 522; Cline v. W. O. W., 111 Mo.App. 601; Walton v. Fraternal Aid Association, 149 Mo.App. 493. Defendant could not declare a forfeiture on account of the nonpayment of the contribution for the month of October, 1904, until it had notified Bange "of its decision to carry him no longer and had given him a reasonable opportunity to pay his arrearages." Britt v. Woodmen of the World, 153 Mo.App. 710; Seehorn v. Catholic K. of A., 95 Mo.App. 233. (3) 2094 Wilcox avenue, Chicago, Illinois, was Bange's regular address. Bange v. Legion of Honor, 128 Mo.App. 461; Bange v. Legion of Honor, 153 Mo.App. 154. The question as to what was Bange's regular address was a question of law for the court, and it was error for the court to give instructions to the jury that referred to their determination this question of law. Williams v. Williams, 132 Mo.App. 266; Mann v. Railroad, 123 Mo.App. 486; Meyers v. Casualty Co., 123 Mo.App. 682; Young v. VanNatta, 113 Mo.App. 551; Hendley v. Refinery Co., 106 Mo.App. 20; Mexico v. Jones, 27 Mo.App. 534; Cornovski v. Transit Co., 207 Mo. 263; May v. Crawford, 150 Mo. 527. It was conclusively shown that Chicago was Bange's regular address, and it was not the province of the jury to pronounce the legal conclusions following from the conclusively ascertained facts. Davies v. Railroad, 159 Mo. 7; Furber v. Bolt & Nut Co., 185 Mo. 301. Even if notices of contributions were addressed and mailed to 2637 Park avenue, the same was insufficient under the defendant's laws. Hannum v. Waddill, 135 Mo. 153; Siebert v. Chosen Friends, 23 Mo.App. 272; Force v. Knights of Honor, 41 Mo.App. 117. (4) The court erred in giving defendant's instructions, and erred in refusing to give instructions requested by plaintiff. The instructions given by the court of its own motion were erroneous. Bange v. Legion of Honor, 153 Mo.App. 154; Bange v. Legion of Honor, 128 Mo.App. 461; Davidson v. Transit Co., 211 Mo. 320; Wolfe v. Supreme Lodge, 160 Mo. 675; Christian v. Ins. Co., 143 Mo. 460; Summers v. Ins. Co., 90 Mo.App. 691. (5) No presumption that a letter reached the addressee arises unless it appears that the person resided in the city or town to which the letter was addressed. Goodwin v. Assurance Society, 97 Iowa 226. The failure to give notice as prescribed in the laws would not be excused even if Bange omitted to notify the recorder of his change of address. Wachtel v. Widows and Orphans Society, 84 N.Y. 28. The contents of a notice, including the list of deaths and the amount due upon the contribution, are as necessary to be proved as the fact of service. Burchard v. W. C. T. A., 139 Mo.App. 622; Supreme Lodge v. Johnson, 78 Ind. 110; Agnew v. A. O. U. W., 17 Mo.App. 254. (6) Acquiescence and abandonment cannot be invoked where the suspension is void. Wayland v. Indemnity Co., 166 Mo.App. 221; Johnson v. Ins. Co., 166 Mo.App. 261.

Kinealy & Kinealy for respondent.

(1) Plaintiff's objections to the definiteness of the answer are not well founded. But even if they were, they come too late since they are waived by replying to the merits. Ewing v. Vernon Co., 216 Mo. 681. (2) The two prior opinions of this court in this case dispose of appellant's points adversely to her, and those opinions are the law of this case on this appeal. Taussig v. Railroad, 186 Mo. 269; Hayward v. Smith, 187 Mo. 464; Mill Co. v. Sugg, 206 Mo. 148; Railroad v. Bridge Co., 215 Mo. 286. (3) Defendant's law as to the payment of contributions is self-enforcing. Bange v. Sup. Council, 128 Mo.App. 461. (4) The question as to what was Bange's regular address was one for the jury. Bange v. Legion of Honor, 153 Mo.App. 154. (5) The letter written by Mr. Lindsley was no justification for Bange's failure to pay his contributions. Bange v. Sup. Council, 128 Mo.App. 461. (6) Appellant's instruction requiring notice of suspension from the recorder of Irving Council as well as from the supreme recorder was properly refused. No law required it and no established custom known to Mr. Bange to give it was shown. Such a custom would moreover have to be pleaded. Staroske v. Publishing Co., 235 Mo. 67. (7) Even if the question were here up for decision, which it is not, it would have to be held that the allegation that the contribution was duly called, is sufficient. Edwardson v. Garnhart, 56 Mo. 81. (8) Moreover, the definite and specific pleading, in plaintiff's reply, of defendant's laws as to notices and calls for contributions would supply any deficiency in that regard in the answer. Garth v. Caldwell, 72 Mo. 622; Lee v. Railroad, 195 Mo. 400; Shelton v. Railroad, 167 Mo.App. 404. (9) If Bange had knowledge or notice of his suspension and offered no objection or protest he thereby acquiesced therein, and hence the instruction given by the court on the subject of acquiescence was correct. Bange v. Sup. Council, 128 Mo.App. 461.

NORTONI, J. Allen, J., concurs; Reynolds, P. J., not sitting.

OPINION

NORTONI, J.

This is a suit on a benefit certificate. The finding and judgment were for defendant and plaintiff prosecutes the appeal.

Defendant is a fraternal association, and the defense is that the insured forfeited his membership through nonpayment of contributions prior to his death and because of which he was suspended from the order. A second defense is to the effect that, though the suspension of the insured member was illegal, he nevertheless acquiesced therein, after having received due notice of such suspension.

The case has been reviewed here on two prior appeals. We find the relevant facts to be substantially the same as those stated on the first appeal. We copy that statement here as sufficient for the purposes now in hand. [See Bange v. Sup. Council, etc., 128 Mo.App. 461, 105 S.W. 1092.]

"The insured was Julius A. Bange. He was a member of Irving Council No. 2 of the defendant order, the Supreme Council Legion of Honor of Missouri. Minnie Bange was the wife of the insured and the beneficiary of the certificate, in which the order obligated itself to pay her $ 2,000 on due notice and proof of the death of her husband. Bange joined the order and took out the certificate April 5, 1902. At that time he was a resident of the city of St. Louis and lived at 3546 Henrietta street. He died February 19, 1905, in Texas, while traveling there as a salesman for a Chicago business concern. Subsequently Bange moved from No. 3546 Henrietta street, St Louis, to 2637 Park avenue. This removal was in October, 1903, and plaintiff with his family, consisting of himself, wife and child, went to live with his mother-in-law, Mrs. Hobie. Thereafter the recorder of Irving Council would sometimes call at 2637 Park avenue to collect the dues and sometimes send a written notice of a call for payment to that address. A by-law of the order provided that a notice to pay dues should be 'directed to the regular address of the member and deposited in the post office,' provided further that this should be a sufficient notice to bind a member. Contributions to the relief fund were called monthly and during the year 1904, Bange's dues were $ 1.39 a month. In May of that year and while still residing at 2637 Park avenue, he paid the order six dollars, which sum discharged his dues to June 30, 1904, and left thirty-three cents standing to his credit. The call due June first and payable as late as June 30th, was No. 128, and was the last call paid by Bange. During the summer and sometime, it seems, after June, Bange, being out of employment,...