Bondurant v. Brotherhood of American Yeomen

• Decision Date: 05 November 1917
• Docket Number: No. 12106.,12106.
• Citation: 199 S.W. 424
• Parties: BONDURANT v. BROTHERHOOD OF AMERICAN YEOMEN.
• Court: Missouri Court of Appeals

199 S.W. 424

BONDURANT v. BROTHERHOOD OF AMERICAN YEOMEN.

No. 12106.

Kansas City Court of Appeals. Missouri.

November 5, 1917.

Rehearing Denied December 3, 1917.

Appeal from Circuit Court, Adair County; C. D. Stewart, Judge.

"Not to be officially published."

Action by Ruby Bondurant against the Brotherhood of American Yeomen. Judgment for plaintiff, and defendant appeals. Affirmed.

John D. Dennison, Jr., of Des Moines, Iowa, and Chas. E. Murrell, of Kirksville, for appellant. P. J. Reiger, A. Doneghy, and Campbell & Ellison, all of Kirksville, for respondent.

TRIMBLE, J.

This action is on a contract of insurance dated April 16, 1914, issued by defendant to Paul M. Bondurant, and in which his wife, the plaintiff herein, is the beneficiary. The defense sought to be interposed was that insured committed suicide. No claim is made that he contemplated suicide at the time the policy was applied for, the defense of suicide resting upon defendant's claim that it is a fraternal benefit association and as such is not subject to the provisions of section 6945, R. S. Mo. 1909, making suicide no defense unless it was contemplated at the time the policy was applied for, notwithstanding any provision in the policy to the contrary.

The petition alleged that the defendant was a life and accident insurance company organized under the laws of Iowa and transacting business as such in the state of Missouri. It also alleged plaintiff's relationship to the insured, the issuance to him of the contract of insurance in which plaintiff was made beneficiary, and stated that by the terms of the contract defendant agreed to pay plaintiff $2,000 upon proof of the death of her husband. The petition further stated that insured died January 15, 1915, while said contract was in full force; that proof of death was made and payment refused. The policy was filed with the petition, and was referred to therein as being attached and marked Exhibit A.

Defendant's answer admitted the execution and issuance of the contract sued on, the death of Bondurant while in good standing, and that plaintiff was the wife of deceased and the beneficiary in the insurance contract. The answer further alleged that defendant "is and was a fraternal beneficiary association duly organized and doing business as such under the laws of the state of Iowa at all times herein mentioned," and, further, that it "is and was a fraternal beneficiary association duly authorized and licensed to do business as such in the state of Missouri at all times herein mentioned." The answer then set up as a defense to the suit that insured died by his own hand. Neither the laws of Iowa, nor the constitution and bylaws or articles of incorporation of the defendant, were pleaded. The only reference to them in the answer is that they were filed as an exhibit with the answer.

At the commencement of the trial defendant announced that the burden of proof was upon it, and asked permission to open and close the case, but this request was denied. Thereupon plaintiff introduced, without objection, the policy. It provided that upon the death of the insured the beneficiary would be entitled to participate in the mortuary fund to the amount of one full assessment for all members in good standing not to exceed $2,000. The plaintiff then introduced defendant's written report made to the insurance department of the state of Missouri for the year 1914, which showed an excess of income above expenses of more than $340,000, a saving of more than $40,000 by scaling down claims, and total assets of over $3,000,000, and that one full assessment for all members in good standing would vastly exceed the sum of $2,000. Plaintiff then rested, and defendant sought to introduce the laws of Iowa, and what purported to be defendant's constitution and by-laws. These were objected to because they were immaterial under the pleadings, and because it was shown that defendant was not a fraternal benefit association. The court excluded the offers, and also excluded evidence offered by defendant tending to show that insured died by his own hand. The plaintiff's right to recover was completely established by reason of the conclusive admissions of defendant, unless it was entitled to the defense of suicide, in which event it would have the right to offer evidence in support thereof and have that issue passed upon by the jury. The court, being of the opinion that the defense of suicide was not open to defendant, excluded the testimony offered by it in that regard and instructed the jury to return a verdict for plaintiff in the sum of $2,000, with 6 per cent. interest from June 25, 1915, the date of the institution of suit. Thereupon the jury returned a verdict of $2,070.33 in plaintiff's favor, and defendant has appealed. The question thus presented is whether defendant should have been allowed to offer evidence in support of suicide as a defense. Of course, such defense was not open to it, unless it was shown to be a fraternal benefit association.

And in this case, if the defendant desired to obtain the benefit accruing from our laws to such associations, it was incumbent upon it to plead that it was that kind of an organization, and offer proof in support thereof before it would be entitled to make the defense in question. As we view the answer, defendant did not plead that it was a fraternal benefit association, and if it did not, the matter was not in issue. Whether an organization is a fraternal benefit society within the definition of our statute (section 2 of the act of March 30, 1911; Laws Mo. 1911, p. 284) depends upon the existence of a number of facts relating to its organization, method, and purpose of doing business specified in the statutory definition. And in order for the defendant to put such matter in issue it should have pleaded those facts. Newland v. Modern Woodmen of America, 168 Mo. App. 311, 313, 314, 153 S. W. 1097. Instead of doing this, the defendant contented itself with merely stating a bare legal conclusion in that regard. No facts were pleaded from which the court could,...