Bozarth v. The Lincoln Legion of Honor

• Citation: 67 S.W. 679,93 Mo.App. 564
• Parties: CORA V. BOZARTH Respondent, v. THE LINCOLN LEGION OF HONOR, Appellant
• Decision Date: 07 April 1902
• Court: Kansas Court of Appeals

67 S.W. 679

93 Mo.App. 564

CORA V. BOZARTH Respondent, v. THE LINCOLN LEGION OF HONOR, Appellant

Court of Appeals of Missouri, Kansas City

April 7, 1902

Appeal from Adair Circuit Court.--Hon. B. R. Dysart, Special Judge.

AFFIRMED.

Judgment affirmed.

P. F Greenwood and Rieger & Rieger for appellant.

(1) The demurrer offered by defendant at the close of plaintiff's evidence should have been sustained; because plaintiff had wholly failed to prove that Charles D. Bozarth had complied with the terms of his contract with defendant. The answer specifically denied performance, and plaintiff must prove a performance of its terms in every essential particular before a recovery can be sustained. Marsh v. Richards, 29 Mo. 99; Eyermann v. Mt. Sinai Cemetery Association, 61 Mo. 489; Freeman v. Aylor, 62 Mo.App. 613; Billsups v. Daggs, 38 Mo.App. 367; St. Louis v McDonald, 10 Mo. 609; Monks v. Miller, 13 Mo.App. 363; Craycroft v. Walker, 26 Mo.App. 469; Sewer Pipe Co. v. Thompson, 120 Mo. 218; Crone v Stinde, 68 Mo.App. 122.

O. D. Jones and J. M. McCall for respondent.

(1) The demurrer to the evidence was properly overruled. Every fact necessary to a recovery was admitted on the pleading, and in evidence. The answer is in fact and law a confession and avoidance. Puhr v. Lodge, 77 Mo.App. 47; Hirsch v. Lodge, 78 Mo.App. 358. (2) Forfeitures are not favored and those relied on must be clearly averred and proven. Connelly v. Society, 43 Mo.App. 283; Chadwick v. Alliance, 56 Mo.App. 463; Renn v. Lodge, 83 Mo.App. 442; Nichols v. Carter, 49 Mo.App. 401. (3) This is the only question on this record, in our opinion, to be determined. No instructions are preserved in trial before the court. Suddarth v. Robertson, 118 Mo. 293; Price v. Merritt, 55 Mo.App. 640. This court will not weigh the finding of facts. Nichols v. Carter, 49 Mo.App. 401.

OPINION

SMITH, P. J.

Plaintiff is the widow of Charles D. Bozarth who died December 6, 1899. He became a member of the defendant benevolent insurance society in February, 1899, and received from it a benefit certificate for one thousand dollars, payable to plaintiff. Defendant denied liability and refused to pay the certificate to plaintiff, and she thereupon brought this action and recovered judgment in the trial court.

The cause was submitted to B. R. Dysart, Esq., as special judge, a jury being waived. No instructions were asked and we have therefore only to consider whether there was evidence in the case to support the finding in plaintiff's favor. Defendant's sole reliance is a forfeiture of the certificate by reason of deceased failing to pay benefit assessment No. 7 and quarterly dues.

It appears from the by-laws of the society that there is a grand lodge and subordinate lodges. Deceased was a member of what was known as the Kirksville, Adair county, lodge; but he afterwards removed to, or near, Pure Air postoffice, in the same county, where he lived throughout the month of September, 1899, when he removed to Knox county, where he died in December following, as stated. Parties becoming members of the organization become liable to certain prescribed assessments and dues which they severally agree to pay, and the success and usefulness of the society depends altogether on the members complying with this obligation to pay whenever called upon by the authority and in the manner prescribed. The by-laws regulate how this shall be done, and they prescribe the penalty of forfeiture if it is not done; and they prescribe how the forfeiture may be ascertained and declared. So, therefore, in order to sever the relationship between the member and the society, two things must transpire, viz., a default by the member; and a declaration of forfeiture properly made by the society. In this case, the controversy as to deceased's default in his obligations relates to benefit assessment No. 7, and to four quarterly dues. They are treated as separate matters by the by-laws, and so we will consider them.

It appears from a receipt, unexplained and practically uncontradicted, so far as the abstract shows, that deceased on the twenty-sixth of June, 1899, paid all dues up to September 30, 1899. He was authorized to so pay in advance by section 132 of article 25 of the by-laws. This period covers the time in which deceased's failure is charged to have occurred, and is undoubtedly the period upon which defendant's right to declare a forfeiture for dues is based. The trial court found, as a matter of fact, by which we feel bound, that the dues had been paid, and gave judgment for plaintiff. Defendant appealed.

We can not review the evidence and undertake to say whether it justified the finding and judgment, and, as no question of law is saved, the judgment must stand. Where the court in trying issues of fact sits as a jury and gives a general verdict, the only way in which its errors can be corrected, if it decides the law wrongly or makes a misapplication of the law to the facts, is to request declarations of law in order that we may see on what theory it proceeded. To review the case would simply be giving our opinion on the weight of the evidence where no point of law was saved or raised in the trial court. This we can not do. The finding of the court is uncontrovertible here. Easley v. Elliott, 43 Mo. 289; Wilson v. Railway, 46 Mo. 36; Weilandy v. Lemuel, 47 Mo. 322; Hamilton v. Boggess, 63 Mo. 233; Henry v. Bell, 75 Mo. 194; Harrington v. Minor, 80 Mo. 270; Gaines v. Fender, 82 Mo. 497; Cunningham v. Snow, 82 Mo. 587; Sieferer v. St. Louis, 141 Mo. 586, 43 S.W. 163; Sutter v. Raeder, 149 Mo. 297 at 307, 50 S.W. 813; Swayze v. Bride, 34 Mo.App. 414; O'Howell v. Kirk, 41 Mo.App. 523; Claflin v. Burkhart's Adm'r, 43 Mo.App. 226; Morgan v. Railway, 51 Mo.App. 523.

In Hamilton v. Boggess, ante, Judge NAPTON said: "When a case is submitted to a court and a jury dispensed with, the facts upon which the court bases its judgment are incontrovertible here. This court has only the power to review the law declared by the court below and when that court is intrusted with both the facts and the law, we must assume the facts to be as that court finds them. This observation is not made because in the present case the facts in evidence did not justify the assumption of the circuit court in regard to them, for there is, in our opinion, nothing unreasonable in the deductions made by the circuit court from the...