Castens v. Fraternal Aid Union

Citation255 S.W. 966
Decision Date06 November 1923
Docket NumberNo. 17687.,17687.
PartiesCASTENS v. FRATERNAL AID UNION
CourtCourt of Appeal of Missouri (US)

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Annie Castens against the Fraternal Aid Union, a corporation. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

R. P. & C. B. Williams, of St. Louis (Geo. R. Allen, of Kansas City, Kan., of counsel), for appellant.

J. E. Turner, of St. Louis, for respondent.

BRUERE, C.

This is a suit upon a benefit certificate of insurance issued by the defendant on the life of Henry Castens for the benefit of plaintiff, Castens' daughter. The cause was tried before the court and a jury, and resulted in a verdict in favor of the plaintiff for the amount of the certificate with interest and $50 damages for vexatious refusal to pay. Unavailing in its motion for a new trial, the defendant appealed.

The petition alleged that defendant is a corporation organized under the laws of the state of Kansas and authorized to do business in the state of Missouri as a life insurance company; that the defendant executed and delivered to Henry Castens, plaintiff's father, the certificate in suit, dated the 31st day of March, 1919, by the terms of which it insured the life of the said Henry Castens, and promised to pay to the plaintiff, the beneficiary named in said certificate, the sum of $500, upon receipt of proofs of death of said Henry Castens; that the said Henry Castens died on the 5th day of August, 1919, and that payment of the amount of the certificate was demanded and defendant refused to pay the same. The petition prays judgment against the defendant for the sum of $500, with legal interest thereon, together with 10 per cent. damages and attorney's fees for vexatious refusal to pay the certificate.

The answer denies that defendant is a life insurance company and alleges that it is a fraternal beneficiary association incorporated under the laws of the state of Kansas, and as such authorized to do business in the state of Missouri by the superintendent of insurance of said state under the laws thereof; that as such fraternal association it has no capital stock and is organized and carried on solely for the mutual benefit of its members and their beneficiaries, and not for profit; that defendant has a lodge system with ritualistic form of work and representative form of government and makes provision for the payment of benefits in accordance with section 6 of the fraternal beneficiary association statute of the state of Missouri (Laws 1911, p. 285), and that defendant is so authorized to issue such benefit certificate under the laws of the state of Kansas; admits that the certificate was issued to Henry Castens, and that plaintiff was the beneficiary, and that the assured died on the 5th day of August, 1919.

The answer further averred that the bylaws of the defendant order were expressly made a part of the contract of insurance between the said assured and the defendant and that all the rights of the beneficiary thereunder were to be determined by said by-laws; that, at the time said benefit certificate was issued, a by-law of the defendant order, known as section 69, was in force, and which section prescribed that all payments due under said certificate, in order to keep the same in force, should be made on or before the first day of the month upon which the same were due and payable, and if not made on or before the first day of the month said certificate should be absolutely null and void and of no effect. The answer further alleged that the said Henry Castens failed to make the monthly payment, due under the certificate, for the month of August, 1919, by reason whereof said certificate became null and void and of no effect. The allegations of the answer were denied by a reply.

The certificate bears date the 31st day of March, 1919, and was delivered to and accepted by the assured on the 4th day of April, 1919. The provisions thereof, pertinent to the issues raised, are:

"This benefit certificate, issued by the Fraternal Aid Union, payments monthly $4.48, witnesseth: That Henry Castens, a member of this association, enrolled in Lodge No. 599 located at St. Louis, in the state of Missouri, while in good standing subject to all the provisions of this certificate and also all those contained in the constitution and by-laws adopted or hereafter adopted by the Fraternal Aid Union, except as herein otherwise provided, is entitled in case of his death to have his beneficiary, Annie Castens, bearing relationship to said member of daughter, to receive the amount of five hundred dollars.

"This certificate is based upon the application of the member to whom the same is issued and the medical examination accompanying the same, and said application with said medical examination, the articles of incorporation, the constitution and laws of the association, now and hereafter adopted, and this certificate constitute the agreement between the Fraternal Aid Union and said member. * * *

"Payments by Members.

"Payments on this certificate subsequent to the acceptance hereof shall be due from and must be made by the member at the time specified below, as follows: If monthly, on or before the first day of the next month after the acceptance hereof by the member, and on or before the first day of each succeeding month thereafter. * * * It is agreed and understood that failure to make payments at the times and in accordance with the foregoing provisions shall, ipso facto, work a forfeiture of this certificate if the same occurs during the first three years of membership. * * *"

Section 69 of the constitution and by-laws of the defendant order, among other things, provides that if any and all payments and local lodge dues from any member holding a benefit certificate, similar to the one in question, are not paid, on or before the 1st day of the month on which the same are due and payable, his benefit certificate shall be absolutely null and void, and of no effect, unless such member, within six months from the time of becoming delinquent, shall comply with the conditions for reinstatement in said section specified.

Other facts, disclosed by the evidence and pertinent to the issues raised, are: The certificate sued on was issued to Henry Castens in lieu of an old certificate that he held in the defendant association. The new certificate is known as the American four per cent. certificate. It is dated March 31, 1919, and was accepted by the insured on April 4, 1919.

In his application for exchange to American four per cent, certificate, the insured agreed to pay the first payment on the new certificate on or before the 1st day of April, 1919, and to make payment thereafter on or before the 1st day of each succeeding month.

The premium or monthly assessment on the certificate sued on was $4.48, plus 25 cents lodge dues. The premium on the old certificate was $3.80 per month and 25 cents lodge dues. The plaintiff introduced in evidence seven receipts, issued by the local secretary of the defendant association to Henry Castens for payments made by the insured on the two certificates held by him. The payments so made, as shown by said receipts, are as follows:

                       payments 1 and 2, lodge dues for January and
                         February, 1919................................  $ 8 70
                       April 3, 1919. Payment 3, lodge dues for
                         March, 1919...................................    3 85
                       April 5, 1919. Payment 4, lodge dues for
                         April, 1919...................................    4 74
                       May 7, 1919. Payment 5, lodge dues for May
                         1919..........................................    4 73
                       June 3, 1919. Payment 6, lodge dues for June
                         1919..........................................    4 73
                      July 12, 1919. Payment 7, lodge dues for July
                        1919...........................................    4 73
                      March 17, 1919. Exhibit 8 ($4.55 for March
                      assessment and 70 cents on February assessment)..    5 25
                                                                        __________
                          Total........................................  $36 73
                

The receipt for $3.85 was issued by Florence Bowers, who was the local secretary of the defendant. The receipt for $5.25 was issued by Oath. A. Cameron, who also was authorized to receive payments from members of the defendant association. Miss Bowers, on behalf of the defendant, testified that payment 3, being the March assessment for $3.85, was paid to her by Miss Cameron and that Miss Cameron had requested her to mail plaintiff an official receipt which she did. The defendant at the trial contended that the receipt for $3.85 was a duplicate of the receipt for $5.25. However, both Miss Bowers and Miss Cameron were unable to explain why the receipts acknowledged payments of different amounts on different dates; nor was there any evidence introduced throwing light on these discrepancies.

The local secretary of the defendant association received from the assured, on July 12, 1919, in payment of the July assessment, the sum of $5, which sum was 27 cents more than was due by the assured. At the request of the assured, this 27 cents was retained by said secretary to be applied on the assessment for the month of August. There was evidence introduced tending to show that this was done without the knowledge of the home office. The defendant by leave paid said 27 cents into court...

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2 cases
  • Britton v. Junior Life Ins. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • January 7, 1927
    ...assessments until the member dies and then assert that there was no waiver of forfeiture." To the same effect are Castens v. Fraternal Aid Union (Mo. App.) 255 S. W. 966; Hawkins v. Woodmen Accident Ass'n (Mo. App.) 204 S. W. 566; McMahon v. Maccabees, 151 Mo. 522, 52 S. W. It is contended ......
  • Duerkob v. Brown
    • United States
    • Court of Appeal of Missouri (US)
    • November 9, 1923

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