Biggs v. Modern Woodmen of America

• Decision Date: 17 April 1935
• Docket Number: No. 33741.,33741.
• Citation: 82 S.W.2d 898
• Parties: BERTHA BIGGS v. MODERN WOODMEN OF AMERICA, Appellant.
• Court: Missouri Supreme Court

82 S.W.2d 898

BERTHA BIGGS v. MODERN WOODMEN OF AMERICA, Appellant.

No. 33741.

Supreme Court of Missouri.

Division One, April 17, 1935.

Appeal from Henry Circuit Court. — Hon. W.L.P. Burney, Judge.

REVERSED.

George G. Perrin, George H. McDonald, Nelson C. Pratt, W.E. Owen, David P. Janes and Arthur N. Adams for appellant; Goodwin Creason of counsel.

(1) The court erred in refusing to give appellant's instruction at the close of all the evidence, as follows: "At the close of all the testimony the court instructs the jury that under the law and the evidence, your verdict must be for the defendant." (a) Appellant is a fraternal beneficiary association, and, as such, is exempt from the general insurance laws. Chap. 37, Art. 13, R.S. 1929; Loyd v. Modern Woodmen of America, 113 Mo. App. 19, 87 S.W. 530; State ex rel. v. Trimble, 303 Mo. 266, 259 S.W. 1052; Owens v. Washington Fid. Natl. Ins. Co., 64 S.W. (2d) 293. (b) The contract between a member and a fraternal society consists of, first, the application to become a member; second, the benefit certificate issued thereon; and, third, the by-laws of the society. State ex rel. v. Trimble, 303 Mo. 266, 259 S.W. 1052; Williams v. Modern Woodmen of America, 204 Mo. App. 135, 243 S.W. 272; Westerman v. Supreme Lodge, 196 Mo. 670, 94 S.W. 470; Masonic Ben. Assn. v. Bunch, 109 Mo. 560, 19 S.W. 25. (c) A member of a fraternal beneficiary society is conclusively presumed to know the by-laws and the terms of his contract. Daffron v. Modern Woodmen of America, 176 S.W. 498, 190 Mo. App. 303; Galvin v. Knights of Father Matthew, 169 Mo. App. 496, 155 S.W. 45; Day v. Woodmen Circle, 174 Mo. App. 260, 156 S.W. 721; 1 Couch on Insurance, sec. 238, p. 495; Boyce v. Royal Circle, 99 Mo. App. 349, 73 S.W. 300; Norton v. Catholic Order of Foresters, 138 Iowa, 464, 114 N.W. 893; Steen v. Modern Woodmen, 296 Ill. 104, 129 N.W. 546; Burchard v. Western Commercial Travelers Assn., 139 Mo. App. 606, 123 S.W. 973; Sec. 6010, R.S. 1929; Jenkins v. Talbot, 338 Ill. 441, 170 N.E. 735; Loyd v. Modern Woodmen of America, 113 Mo. App. 19, 87 S.W. 530; Knode v. Modern Woodmen of America, 171 Mo. App. 377, 157 S.W. 818; Harvey v. A.O.U.W., 50 Mo. App. 472. (d) In a fraternal beneficiary association the member has a dual capacity — he is an insurer and an insured. Lavin v. Grand Lodge, 112 Mo. App. 1, 86 S.W. 600; Bange v. Supreme Council, 179 Mo. App. 21, 161 S.W. 652; 1 Cooley's Brief (2 Ed.), 68; 8 Cooley's Brief (2 Ed.), p. 6, sec. 67; Miller v. Natl. Council, 69 Kan. 234; State ex rel. v. Wells, 208 N.W. 659; Thomas v. Maccabees, 85 Wash. 665, 149 Pac. 7. (e) An agent of a fraternal beneficiary society cannot by his conduct bind the society in any manner, if the society cannot so bind itself by express contract. Porter v. Loyal Americans, 180 Mo. App. 538, 167 S.W. 578; Sec. 1, Smith & Hurd's Ill. Statutes, 1929, p. 1714; Sec. 5998, R.S. 1929; Knode v. Modern Woodmen of America, 171 Mo. App. 377, 157 S.W. 818. (f) The case of Jenkins et al. v. Talbot et al., having been brought on behalf of all members of the society, the decree entered therein is binding upon all such members, including John W. Biggs. Jenkins v. Talbot, 338 Ill. 441, 170 N.E. 735; 15 R.C.L. 1026, sec. 500; People v. Clark, 296 Ill. 46, 129 N.E. 583; Schmidt v. Modern Woodmen of America, 261 Ill. App. 276; Hartford Life Ins. Co. v. Ibs, 237 U.S. 662; Royal Arcanum v. Green, 237 U.S. 531; Modern Woodmen of Am. v. Mixer, 267 U.S. 544; State ex rel. v. Shain, 245 Mo. 78. (g) The evidence shows that John W. Biggs acquiesced in his suspension and abandoned his membership in the Modern Woodmen of America. Jenkins v. Talbot, 338 Ill. 441, 170 N.E. 735; Lodge Knights of Pythias v. Mims, 241 U.S. 574, 60 L. Ed. 1179, L.R.A. 1916F, 919; Bange v. Supreme Council, 179 Mo. App. 21, 161 S.W. 652; Konta v. St. Louis Stock Exchange, 189 Mo. 26, 87 S.W. 969; Easter v. Yeomen, 172 Mo. App. 292, 157 S.W. 992. Lee v. Insurance Co., 303 Mo. 492, 261 S.W. 83; Lavin v. A.O.U.W., 112 Mo. App. 1, 86 S.W. 600; 45 C.J., sec. 111, p. 134. (2) Because the representations set out in said instruction are mere expressions of opinion as to the law and the legal effect of a written instrument and could not be the basis of an estoppel. Dalrymple v. Craig, 149 Mo. 345, 50 S.W. 884; Allgood v. Tarkio E. & W. Co., 222 Mo. App. 964, 6 S.W. (2d) 51; Kingman & Co. v. Shawley, 61 Mo. App. 54; State ex rel. v. Trimble, 303 Mo. 266, 259 S.W. 1052.

Vance Julian for respondent.

(1) When defendant's special representative called on Mr. Biggs and informed him that his policy must be changed for a new one, that the old policy was no good, that he would have to take out a new policy just like joining the order all over again; that the association would not accept premiums thereon, such action was wrongful and amounted to a breach of contract which excused insured from paying or tendering premiums thereafter. Bellis v. Modern Woodmen of America, 49 S.W. (2d) 1059; Newman v. John Hancock Mut. Life Ins. Co., 216 Mo. App. 180, 257 S.W. 192; Spencer v. Surety Benefit Assn., 297 S.W. 991; Wayland v. Western Life Indemnity Co., 166 Mo. App. 221, 148 S.W. 629; Knott v. Security Mut. Life Ins. Co., 161 Mo. App. 579, 144 S.W. 184; Murphy v. Brotherhood of Railroad Trainmen, 199 S.W. 730; Boyce v. Royal Circle, 104 Mo. App. 528, 79 S.W. 495. (2) The action of defendant through its special representative estopped it from legally declaring a forfeiture of insured's policy for nonpayment of assessments or premiums, so that insured had a right to hold the policy until his death and treat it as in force, and his beneficiary can recover the amount of the policy less any premiums that had become due up to the time of insured's death. Newman v. John Hancock Mut. Life Ins. Co., 7 S.W. (2d) 1017; Bellis v. Modern Woodmen of America, 49 S.W. (2d) 1059. (3) The defendant refused to receive any further assessments after July 1, 1930, or to further recognize the validity of its contract with plaintiff. There is no proof that the defendant had any grounds to terminate the contract, then such attempted termination on defendant's part was wrongful, and does not relieve defendant from liability therein. It was nothing more than an arbitrary refusal on defendant's part to recognize the contract, and did not abrogate the policy. Murphy v. Brotherhood of Railroad Trainmen, 199 S.W. 730; Wanek v. Supreme Lodge Bohemian Slavonic Benev. Society, 84 Mo. App. 185; Pac. Mut. Ins. Co. v. Guse, 49 Mo. 329, 8 Am. Rep. 132; Craig v. Western Life Ins. Co., 136 Mo. App. 5, 116 S.W. 1113; Wayland v. Western Life Indemnity Co., 166 Mo. App. 221, 148 S.W. 626; Johnson v. Hartford Life Ins. Co., 166 Mo. App. 261, 148 S.W. 631, affirmed 271 Mo. 562, 197 S.W. 132. (4) The case of Jenkins v. Talbot does not enter into the case at bar because it was not an issue in the trial court as to the right of appellant to change its by-laws. Cravens v. N.Y. Life, 148 Mo. 583, 50 S.W. 519; N.Y. Life v. Cravens, 178 U.S. 389; Head v. N.Y. Life, 241 Mo. 403; Head v. N.Y. Life, 241 Mo. 420; N.Y. Life v. Head, 234 U.S. 166; Kavanaugh v. Royal League, 138 S.W. 359; Weed v. Life Ins. Co., 24 S.W. (2d) 653. (5) Instruction 1 given by the court on behalf of the plaintiff has been held sufficient by this court; and covers the essential requirements of the case. The special representative was the agent of the appellant and was held out to have full authority to do whatever was necessary in changing the policy of insured. Bellis v. Modern Woodmen of America, 49 S.W. (2d) 1059; Barnes v. Kansas City, 63 S.W. (2d) 166; Grote v. Hussman, 204 Mo. App. 466, 223 S.W. 132; Wallnitz v. Werner, 241 S.W. 670; Bledsoe v. Capital City Laundry Co., 256 S.W. 1076 Tranbarger v. Railroad Co., 250 Mo. 58, 156 S.W. 694; Galamba v. Harrisonville Pump & Foundry Co., 191 S.W. 1086; Bliesner v. Riesmeyer Distilling Co., 174 Mo. App. 150, 157 S.W. 980; May v. Avansino, 185 S.W. 1180; Dale v. Smith, 185 S.W. 1185.

HYDE, C.

This is an action on a $2,000 benefit certificate of the defendant by the widow of John W. Biggs, deceased, the beneficiary therein. After a trial resulting in a favorable jury verdict, judgment was entered for plaintiff in the sum of $1,912.55, being the full amount provided for by the certificate less eleven months' premiums thereon. Defendant appealed from this judgment to the Kansas City Court of Appeals. [1] The judgment was affirmed in an opinion adopted by a majority of the judges of the Kansas City Court of Appeals but upon the dissent of one of the judges, who thought the judgment ought to be reversed, the case was certified to this court. [Biggs v. Modern Woodmen (Mo. App.), 71 S.W. (2d) 783.] It is, therefore, before this court for complete determination the same as a case in which this court obtains jurisdiction by a direct appeal in the first instance. [See 6, Amendment, 1884 Constitution.]

The answer and reply are very fully analyzed in the opinion of the Court of Appeals, which may be referred to for further details. The defense was that the benefit certificate sued on was null and void because of Biggs' failure to pay prior to July 31, 1930, the assessment then due thereon, or any assessments thereafter. The reply admitted the nonpayment of these assessments but alleged waiver and estoppel which plaintiff claimed prevented a forfeiture. It was recognized by the Court of Appeals that "the contract of insurance consists of: (1) The application of John W. Biggs to become a member and obtain a benefit certificate; (2) the constitution and by-laws of the defendant society; (3) the benefit certificate. In the application, dated April 12, 1898, Biggs agreed: To pay all legally levied assessments and dues within the time provided, `and to conform in all respects to the laws, rules and usages of the Society now in force, or which may hereafter be enacted and adopted by same;' he further agreed therein that the application and...