Bolin v. Sovereign Camp, W. O. W.

• Decision Date: 15 November 1937
• Docket Number: No. 18928.,18928.
• Parties: BOLIN et al. v. SOVEREIGN CAMP, W. O. W.
• Court: Missouri Court of Appeals

112 S.W.2d 582

BOLIN et al. v. SOVEREIGN CAMP, W. O. W.

No. 18928.

Kansas City Court of Appeals. Missouri.

November 15, 1937.

Rehearing Denied January 10, 1938.

Appeal from Circuit Court, Nodaway County; D. D. Reeves, Judge.

Suit by William F. Bolin and others against the Sovereign Camp of the Woodmen of the World on a beneficiary certificate. A judgment was for the plaintiffs, and the defendant appealed.

The cause was transferred by the Supreme Court to the Kansas City Court of Appeals, 339 Mo. 618, 98 S.W.2d 681.

Affirmed.

Rainey T. Wells, of Omaha, Neb., Wright & Ford, of Maryville, and Harding, Murphy & Tucker, of Kansas City, for appellant.

Livengood & Weightman, J. S. Shinabargar, and A. F. Harvey, all of Maryville, for respondents.

REYNOLDS, Judge.

This case is before us on rehearing. It is a suit on a beneficiary certificate issued by the defendant to Pleasant Bolin of date June 3, 1896, and made payable on his death to his wife in the sum of $1,000 and for $100 for a monument to be erected at his grave. Bolin died on or about July 18, 1933, leaving the plaintiffs as his children and descendants and beneficiaries (his wife having predeceased him a short while) and no other beneficiaries having been designated in the certificate.

The certificate contains a provision that it was incontestible after one year from the date thereof on the ground of irregularities, provided the member to whom it was issued had complied with all of its requirements, and contains this provision on its face: "Payments to cease after 20 years." The "payments to cease" clause was ostensibly authorized by a by-law of the defendant in force at the time the certificate was issued and delivered to Bolin.

It was stated by the defendant in its amended answer that Bolin paid the monthly dues and installments as required by the constitution, laws, and by-laws of the order up to and including the month of June, 1916, more than twenty years, and made no further payments thereafter. The defendant claims that the certificate was forfeited on account of the failure to pay subsequent dues and assessments.

In the trial before the court, the finding and the judgment were for the plaintiffs, from which judgment the defendant appealed to the Supreme Court. That court, upon an inspection of the record, found that it had no appellate jurisdiction of the cause and that such jurisdiction was in this court; and the same was ordered to be and was transferred to this court.

The defendant is a corporation, engaged in the business of life insurance, with its home office in the city of Omaha, in the state of Nebraska, under the laws of which state it was organized.

It operates under the lodge system with a ritualistic form of work and representative form of government, without capital stock, and transacts its business without profit and for the sole and mutual benefit of its members and their beneficiaries and provides for the payment of death benefits on certificates which are issued to its members only. Its revenues and income are derived wholly from dues, assessments, and fixed monthly payments collected from its members. It has a constitution and by-laws for its government, by which the payment of death benefits is limited to the family, heirs, blood relatives, or dependents of the members.

At the time that the certificate in question was issued, Pleasant Bolin, the insured, was a resident of the state of Missouri, living at or near Arkoe, in Nodaway county. At such place, he made application through the local officers of the defendant's lodge, which was being organized or maintained at said place, for membership therein and for the certificate in question. He was accepted as a member, and the certificate involved herein was sent by the defendant to its local officers at Arkoe to be signed and delivered by them to him. It was delivered to him by them at such place; and he there paid the dues and assessments thereon due at that time and continued thereafter to make payment of all dues and assessments thereon to the local officers of the defendant's lodge at such place for the defendant as they became due and payable for twenty years and over, when he ceased to make such payments.

After having ceased to make such payments, he was treated as automatically suspended by the defendant society on the theory that his certificate had become forfeited by reason of his failure to make further payments and that his right to membership in the society had ceased; and the defendant now asserts and contends that such certificate was forfeited by reason of such failure and was not in force at the time of his death.

1. The defendant contends that the "payments to cease" provision in said policy was ultra vires the corporate authority of the defendant and was null and void and that the insured was required under the certificate to continue the payment of dues and assessments from month to month until his death in order to maintain the certificate in force; and it so pleaded in its amended answer. It is contended to the contrary by the plaintiffs; and they contend further that, the insured (Pleasant Bolin) having complied with all of the terms of the certificate as issued to him by the payment of all dues and assessments falling due thereon for twenty years within the times required therefor, he fully performed his obligation and that, the defendant having accepted the payment of all such dues and assessments and retained the same, the certificate remained in force by reason thereof until the time of his death.

By their reply to the defendant's amended answer in this case, the plaintiffs set up estoppel by reason of such facts against the defendant to plead the ultra vires character of the certificate in question and its invalidity and other defenses set up in the amended answer.

2. It is contended by the defendant that the construction of the contract in question is to be governed by the laws of the state of Nebraska and that whether it was in force at the time of the death of the insured, together with all related questions, must be determined in this case from the laws of that state and the construction placed on such laws by the courts of that state. The defendant invokes the "full faith and credit" clause of the Federal Constitution, article 4, § 1, and contends that we are bound thereby, in determining the validity of the provisions of the certificate in question, to determine the same by the laws of that state and by the construction placed thereon by the courts of that state. It sets out in its answer in haec verba the laws of that state under which it is incorporated as constituting its charter and pleads an adjudication by the Supreme Court of that state in the case of Trapp v. this same defendant, 102 Neb. 562, 168 N.W. 191, involving the validity of the "payments to cease" provision in certificates of the same kind as the one herein issued by it, to the effect that such provision is invalid and ultra vires the powers of the defendant as a corporation and makes reference to a further case in that court, Haner v. Grand Lodge, A.O.U.W. of Nebraska, 102 Neb. 563, 168 N.W. 189, alleged to adjudicate to the same effect. The record in the former case is fully set out in the record herein. The record in the Haner Case does not appear herein.

3. Upon the other hand, it is contended by the plaintiffs that the certificate in question is a Missouri contract and is to be construed and governed by the laws of Missouri.

The Supreme Court of this state has determined that the "full faith and credit" clause of the Federal Constitution is not involved herein.

That under our laws it is a Missouri contract is not a debatable question. The certificate was delivered to and accepted by Pleasant Bolin, the insured, in this state. He paid all of the dues and assessments thereon in this state. This makes it a Missouri contract to which the laws of Missouri apply and by the laws of which state it is governed; and the issues concerning it are to be adjudicated in accordance with the decisions of the courts of Missouri. There is a wealth of authority supporting this proposition. Whittaker v. Mutual Life Ins. Co. of N. Y., 133 Mo.App. 664, 114 S.W. 53; Ragsdale v. Brotherhood of Railroad Trainmen, 229 Mo.App. 545, 80 S.W.2d 272; Hoffman v. North American Union, Mo. App., 56 S.W.2d 599; Weed v. Bank Sav. Life Ins. Co., Mo.App., 24 S.W.2d 653; Lukens v. International Life Ins. Co., 269 Mo. 574, 191 S.W. 418; Head v. New York Life Ins. Co., 241 Mo. 403, 147 S.W. 827; Mayhew v. Mutual Life of Illinois, 217 Mo. App. 429, 266 S.W. 1001; Cravens v. New York Life Ins. Co., 148 Mo. 583, 50 S.W. 519, 53 L.R.A. 305, 71 Am.St.Rep. 628; Crohn v. Order of United Commercial Travelers of America, 170 Mo.App. 273, 156 S.W. 472; Horton v. New York Life Ins. Co., 151 Mo. 604, 52 S.W. 356; Orthwein v. Germania Life Ins. Co., 261 Mo. 650, 170 S.W. 885; Saunders v. Union Cent. Life Ins. Co., 212 Mo.App. 186, 253 S.W. 177; Johnson v. American Cent. Life Ins. Co. of Indianapolis, Ind., 212 Mo.App. 299, 249 S.W. 115; 32 C.J., § 10, pp. 980, 981.

4. We having thus determined that the certificate in question is a Missouri contract, to be construed according to the laws of Missouri applicable thereto, the further question arises whether the laws of Missouri applicable to fraternal societies shall be applied to it or whether the laws applicable to general insurance societies shall be applied.

It seems to be conceded that the defendant had no license to do business in this state as a fraternal society at the time that the certificate in question was issued, in 1896. The defendant contents itself with saying that no license was required of it at such time and that, by section 5872, Revised Statutes of Missouri 1889, relating to assessment companies, it was expressly excluded therefrom. However, such act as to any exclusion therefrom related only to domestic fraternal societies or those...