Brittenham v. Sovereign Camp Woodmen of World
Citation | 167 S.W. 587,180 Mo.App. 523 |
Parties | MINNIE B. BRITTENHAM, Respondent, v. SOVEREIGN CAMP WOODMEN OF THE WORLD, Appellant |
Decision Date | 13 June 1914 |
Court | Court of Appeal of Missouri (US) |
Appeal from Jasper County Circuit Court, Division No. Two.--Hon David E. Blair, Judge.
REVERSED.
STATEMENT.--Plaintiff recovered a judgment for one thousand dollars against the defendant on a beneficiary certificate issued on the life of Marriaman H. Brittenham who during his lifetime was the husband of the plaintiff. The defendant is a fraternal beneficiary association organized under the laws of the State of Nebraska and duly authorized to do business in Missouri. The certificate was dated May 10, 1906, and the assured became a member of the local camp of the order at Joplin, in this State. He died on September 28, 1912, and in due course of time this suit was instituted by the beneficiary for the face amount of the certificate.
There were three defenses pleaded in the answer.
Appellant assigns several grounds for reversal. However, under the view we take of the case it is necessary to discuss only the one which we deem decisive. It is that the assured was not in good standing in the order at the time of his death and had not been for two years prior thereto because of having engaged in a prohibited occupation, to-wit, that of bartender and helper in a saloon.
There is no controversy concerning the fact that for about two years prior to the latter part of July, 1912, the last named date being about sixty days before the death of the assured he had been engaged as bartender and helper in at least two saloons in the city of Joplin; and there is no showing that after the latter part of July, 1912, he engaged in any other occupation. At that time he was not living with his wife. At the time of his death he was confined in the jail of Jasper county, having been arrested for shooting at his wife.
The by-laws of the defendant order as to assessments provide:
The amount of the assessment or rates of the assessment as provided in Section 56, above referred to, for members between thirty and thirty-three, which Brittenham was, on each one thousand dollars, per month, is one dollar, making total dues of $ 1.25, per month.
The beneficiary certificate provides that "this certificate is issued and accepted subject to all the conditions on the back hereof and subject to all the laws, rules and regulations in the fraternity now in force or that may be hereafter enacted and shall be null and void if said member does not comply with all of said conditions and with all of said laws, rules and regulations of the Sovereign Camp of the Woodmen of the World that are now in force or that may hereafter be enacted and with the by-laws of camp of which he is a member." On the back of the certificate is the following:
The laws of the order also provide (Sec. 42) as follows:
Subsection b of the general section 66 of the laws of the order provides:
"(b) The knowledge of any officer or of any of the members of the camp that a member thereof has become so far intemperate from the use of intoxicating liquors as to produce delirium tremens, or habitually uses opiates, cocaine, chloral, or other narcotic or poison, or has violated any of the provisions of these laws, or the receipt by his camp of payment of any dues or assessments, or payment by him of the same, shall not in any manner make the Sovereign Camp liable on his certificate, when by these laws his certificate is made null and void and all his rights as a member forfeited."
Subsection a of general section 69 provides:
Subsection g of general section 93 provides:
"(g) The clerk of a camp shall not by acts, representations, waivers, or by vote of his camp, have any power or authority not delegated to him or to the camp by the constitution and laws of the order to bind the Sovereign Camp or his camp."
Subsection a of section 109 provides:
Subsection b of the same general section provides:
"(b) If he fails to make any such payments on or before the first day of the month following, he shall stand suspended, and during such suspension his beneficiary certificate shall be void."
Subsections a and b of general section 118 provides:
The application of Brittenham upon which the certificate in suit was issued contains, among other things, the following: "I am neither directly or indirectly engaged in any of the following prohibited occupations:--saloonkeeper, bartender; nor engaged in the retailing of intoxicating liquors as beverage, or employed in the . . . distribution or delivery of the same." Also, the following: "I hereby consent and agree that this application, consisting of two pages, to each of which I have attached my signature, the examining physician's report and all the provisions of the Constitution and Laws of the Order, now in force or that may hereafter be adopted, shall constitute the basis for and form a part of any beneficiary certificate that may be issued to me by the Sovereign Camp of the Woodmen of the World, whether printed or referred to therein or not."
Section 68 of the laws of the order provides:
"When a beneficiary certificate has been in force for five consecutive years immediately preceding the death, while in good standing, of the member holding the same, the payment thereof shall not be contested on any ground other than that his death was intentionally caused by the beneficiary or beneficiaries, or by the hands of justice, or from the direct result of drinking intoxicating liquors or from the use of opiates, cocaine, chloral or other narcotic poison."
It is shown beyond question that the assessments of $ 1.25 per month--which was the amount due monthly from the assured provided he was not in a prohibited occupation--had all been paid up to and including July, 1912, the same having been paid by the beneficiary, the plaintiff herein. And, so far as the question on which we will decide the case is concerned it may be considered that the assessment for August, 1912, was paid (although there is a controversy as to the payment of that assessment, the evidence showing that defendant claimed the August assessment was never paid, and in fact it was not paid) and for the purpose of this case we will treat the tender of $ 1.25 by the plaintiff to the proper officer of the local camp during the month of August, 1912, as a payment; hence it will not be necessary to pass upon defendant's contention...
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