Cobble v. Royal Neighbors of America

• Decision Date: 30 November 1921
• Docket Number: No. 22150.,22150.
• Citation: 236 S.W. 306,291 Mo. 125
• Parties: COBBLE v. ROYAL NEIGHBORS OF AMERICA.
• Court: Missouri Supreme Court

236 S.W. 306

291 Mo. 125

COBBLE v. ROYAL NEIGHBORS OF AMERICA.

No. 22150.

Supreme Court of Missouri, in Banc.

November 30, 1921.

Motion for Rehearing Overruled December 30, 1921.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by Orpha Cobble against the Royal Neighbors of America. From a judgment for defendant, plaintiff appealed to the Court of Appeals, which (219 S. W. 118) certified the case to the Supreme Court. Reversed and remanded, with directions.

This cause comes to this court from the Springfield Court of Appeals on the dissent of Bradley, J., wherein he sets forth, contrary to the majority opinion of the court, that by-law No. 33, hereinafter set out, is invalid (1) because an unwholesome law and not founded on right and reason, and (2) because it runs counter to the common and statutory laws of the state, and (3) it is out of line with the greater weight of authority in this country.

Elisha W. Cobble made application for membership in defendant's fraternal insurance company on the 27th day of December, 1909, and was admitted thereto on the 29th day of December, 1909, and a benefit certificate was issued to him in the sum of $1,000, payable at his death, with plaintiff, his wife, beneficiary therein.

Et is conceded that said Cobble was a resident of Springfield, Mo., living with his wife and children; that he was a sober man of exemplary habits, and a carpenter by trade. On June 7, 1910, he left home to perform some work and has not been heard from since, although every avenue where information of his whereabouts might have been obtained was resorted to by plaintiff without success. Defendant was notified of his disappearance, but remained quiescent. All of the dues and assessments accruing on said benefit certificate were paid by plaintiff and accepted by defendant until more than seven years had elapsed since his disappearance. Plaintiff then gave notice of insured's death to defendant and demanded payment of said certificate, which was refused, and the present suit was instituted to recover the $1,000 named therein, with interest thereon, from the date of insured's death. Plaintiff was unsuccessful in the court below, and, after motions for a new trial and to arrest the judgment had been filed and overruled by the court, said cause was duly appealed to the Springfield Court of Appeals.

In the application for said benefit certificate it was agreed as follows:

"I agree * * * to conform in all respects to the law, rules and usages of the society, now in force or which may hereafter be enacted and adopted by same; and this application and the by-laws of the society shall form the sole basis of admission to membership therein, and of the benefit certificate to be issued by the said Royal Neighbors of America.

"I fully understand the objects, organization, mode of government defining the qualifications for and the restrictions upon its membership.

"I further understand and agree that the laws of this society, now in force or hereafter enacted, enter into and become a part of every contract of indemnity by and between the members of the society, and govern all rights thereunder.

"And I further expressly waive for myself, my beneficiary or beneficiaries, the provisions of any law, and the statutes of any state, now in force or that may hereafter be enacted, that would, in the absence of this agreement, modify or conflict with my contract with this society or cause it to be construed in any way contrary to its express language."

It was further stipulated that defendant was a fraternal insurance company incorporated under the laws of the state of Illinois, and that it has complied with the laws of this state and is authorized to do business as such in this state; that the authenticity of its by-laws were conceded and admissible in testimony, subject to objection for incompetency, irrelevancy, or immateriality; that the expectancy of life of said Cobble had not expired prior to the institution of the present action, and has not since expired; that the payment of all dues and assessments had been made and received by defendant as above stated; and that no point would be made on account of formal proof of death not having been filed with defendant as required by its by-laws.

It is contended by defendant that the following by-law effectually prevents plaintiff from instituting suit against defendant to recover on said benefit certificate and to postpone the jurisdiction of the court to entertain such suit until the expectancy of life of insured has expired.

Said by-law reads as follows:

Section No. 33: "No lapse of time or disappearance on the part of any member heretofore or hereafter admitted into the society, without proof of the actual death of such member while in good standing in the society, shall entitle his or her beneficiary or beneficiaries to recover the amount of his or her benefit certificate except as hereinafter provided. The disappearance or long-continued absence of any member unheard of shall not be regarded as evidence of death or give any right to recover on any benefit certificate until the full term of the member's expectancy of life * * * has expired within the life of the benefit certificate in question, and this law shall be in full force and effect, and any statutes of any state or country to the contrary notwithstanding." (Italics ours.)

The facts will be further noted when deemed necessary.

Wm. H. Horine and Wright Bros., all of Springfield, for appellant.

Benj. D. Smith, of Mankato, Minn., and Barbour & McDavid, of Springfield, for respondent.

E. T. Fuller, of Paris, and Prank W. McAllister, of Kansas City, amici curiæ.

MOZLEY, C. (after stating the facts as above).

1. As will be seen, the crux of the whole matter is wrapped in the question of the validity or nonvalidity of the above bylaw. It is conceded by both sides, as we understand it, that said by-law operates, and was intended to operate, in the case in hand and all like cases, to postpone the payment of the benefit certificate and to prohibit the right to sue thereon, until insured's expectancy of life had been reached, and not then unless that event happened within the life of the benefit certificate.

2. Our statute (section 6340, R. S. 1009), provides that—

"If any person who shall have resided in this state go from and do not return to this state for seven successive years, he shall be presumed to be dead in any case wherein his death shall come in question, unless proof be made that he was alive within that time."

The common-law rule is stated as follows:

"Where a person has not been heard of for seven years by those who, were he living, would naturally hear from him, he will be presumed to be dead, unless the circumstances are such as to account for his silence without assuming his death."

3. The record before us appears to be silent as to whether or not insured "went from this state without returning to this state for a period of seven successive years." Under this condition of the record, it is plain that plaintiff cannot rely on said statute to establish the presumption of death of the insured. Said statute, however, is one thing and the common law is another. The common law was not repealed by the statute. Cobble v. Royal Neighbors of America (App.) 219 S. W. 120; St. Louis Union Trust Co. v. Buck (App.) 220 S. W. loc. cit. 718; Chapman v. Kullman, 191 Mo. loc. cit. 246, 89 S. W. 924; 22 Am. & Eng. Ency. of Law, par. 1245; Biegler v. Supreme Council, etc., 57 Mo. App. 419; Winter v. Supreme Lodge, K. of P., 90 Mo. App. loc. cit. 16, 69 S. W. 662; Duff v. Duff, 156 Mo. App. 247, 137 S. W. 909; Flood v. Growney, 126 Mo. 262, loc. cit. 264, 28 S. W. 860; Shown v. McMackin, 9 Lea (Tenn.) 601, 42 Am. Rep. 881; Marden v. City of Boston, 155 Mass. 359, 29 N. E. 588.

We quote from the majority opinion in the Cobble Case, supra:

"This restricted statutory rule does not, however, exclude the common-law rule on the same subject, so that the plaintiff may, and indeed must, * * * bottom her case on the common-law rule rather than the statute."

The other authorities cited, we think, fully sustain the rule just quoted.

4. That said by-law runs counter to the rule of evidence established by both the common law and the statute, we think, there is no doubt. Purdy v. Bankers' Life Ass'n, 101 Mo. App. 91, 74 S. W. 486, where it was held that—

"The by-laws of a corporation, duly enacted, and containing no provision contrary to the charter or the laws of the land, are binding on its members, and presumed to be known to them."

It will be noted that the binding character of the by-law, as well as the presumption that the members have knowledge of it, depend upon the validity of the by-law itself. If the law is invalid, the members thereof are neither bound by, nor chargeable with knowledge of, it.

We think this proposition is fully sustained by the following authorities: Hannon v. Grand Lodge, etc., 99 Kan. 734, 163 Pac. loc. cit. 171, L. R. A. 1917C, 1020; Olson v. Modern Woodmen of America, 182 Iowa, 1018, 164 N. W. 346, L. R. A. 1918F, 1164; Samberg v. Knights of Maccabees, 158 Mich. 568, 123 N. W. 25, 133 Am. St. Rep. 396; McLaughlin v. Sovereign Camp, Woodmen of the World, 97 Neb. 71, 149 N. W. 112, D. R. A. 1915B, 756, Ann. Cas. 1917A, 79; Supreme Ruling...