Cobble v. Royal Neighbors of America
| Decision Date | 30 December 1921 |
| Citation | 236 S.W. 306,291 Mo. 125 |
| Parties | ORPHA COBBLE, Appellant, v. ROYAL NEIGHBORS OF AMERICA |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. Guy D. Kirby, Judge.
Reversed and remanded. (with directions).
Wm. H Horine and Wright Bros. for appellant.
(1) The common law obtains in Missouri, Sec. 8047, R. S. 1909. (2) The statute does not change the common-law rule relative to the presumption of death after absence for a period of seven years. Chapman v. Kullman, 191 Mo. 245; Flood v Grover, 126 Mo. 262. (3) There is no presumption that plaintiff's husband died at any particular time within the seven years, but the presumption is that on the 7th day of June, 1917, he was dead. Chapman v. Kullman, 191 Mo. 245. (4) The statutes provide that defendant has no power to pass a by-law not consistent with Art. 7, Chap. 61, R. S 1909, or the Constitution and laws of this State. R. S. 1909, secs. 7055, 3441, 3432; Supreme Ruling of Fra. Mystic Cir. v. Hoskins, 171 S.W. 812. (5) All by-laws must be reasonable, and not repugnant or contrary to the general law. St. Louis Ins. Co. v. Goodfellow, 9 Mo. 149, 153; Purdy v. Banker's Life Assn., 101 Mo.App. 102; Bacon on Benefit Societies, secs. 82 85. (6) The by-law violates Section 1, Article 14, Constitution of the United States. It deprives the plaintiff of property without due process of law, and denies to the plaintiff the equal protection of the law. Plaintiff is by the by-law deprived of her right to sue at the death of her husband, while other beneficiaries may sue. (7) If the court shall deem the presumption of the death to be a rule of evidence then appellant contends that her husband could not waive the presumption. That is a privilege of the litigant. Supreme Ruling v. Hoskins, 171 S.W. 842.
E. T. Fuller and Frank W. McAllister, amici curiae.
(1) If the facts bring the case within the strict terms of Sec. 6340, R. S. 1909, the doctrine seems to be generally accepted that a by-law of a fraternal insurance company attempting to avoid the presumption of death entirely, or to postpone its application for a longer period than that provided by the statute, cannot prevail. National Union v. Sawyer, 42 D. C. App. 475; Mystic Circle v. Hoskins, 171 S.W. 812; Richey v. W. O. W., 168 N.W. 276; Olson v. M. W. A., 164 N.W. 346; Hannon v. A. O. U. W., L. R. A. 1917 C, 1029, 99 Kan. 734, 163 P. 169; Sovereign Camp W. O. W. v. Robinson, 187 S.W. 215; Samberg v. Maccabees, 133 Am. St. 396, 123 N.W. 25; Supreme Lodge K. P. v. Wilson, 204 S.W. 891; Reynolds v. North American Union, 204 Ill.App. 316. In all of these cases the reserve power of the company to make reasonable changes in or amendments to its by-laws is conceded, but the most of those cited hold that provisions similar to the by-law in question here are unreasonable and void. It is true that in most of these cases the rule as to whether the by-law is reasonable is applied in a case involving a prior-made contract, but the reasons generally given for adjusting the by-law unreasonably apply just as forcibly to a contract made after the by-law was enacted. Furthermore, the reasonableness of the presumption of death after seven years' absence is not only supported by the legislative judgment but for centuries the common law courts of Great Britain, without legislature enactment, followed the same rule, as representing the common judgment and experience of men. (2) In the instant case, however, the appellant did not bring her case within the strict terms of Section 6340, because she failed to show that the absentee left this State. However, the evidence brings her case within the common law rule, which is, that the presumption of death arises from an unexplained absence of seven years. 17 C. J. 1167; Flood v. Growney, 126 Mo. 264; Sec. 8047, R. S. 1909. This section unquestionably makes the common law of England as it existed prior to the fourth year of the reign of James the First a part of the law of this State, and gives to the common-law presumption of death after an unexplained absence of seven years the same force and effect as though it was expressly recited in a legislative enactment. It is not a mere right or privilege which the individual may waive, but, as said in National Union v. Sawyer, supra, declares the public policy of the State in that respect and is a direct command to the courts to govern them in the administration of justice. Mystic Circle v. Hoskins, supra. The statutory presumption of death is not a mere rule of evidence. The law itself, instead of the court, raises the presumption. Sec. 3441, R. S. 1909, applies to the class of fraternal beneficiary insurance companies to which respondent belongs and under that section respondent may make by-laws for its government, etc., but it is expressly provided that such by-laws "shall not be contrary to the provisions of the Constitution or laws of this State." (3) There is a direct conflict between the common law rule as to the presumption of death after an unexplained absence of seven years, and the provisions of respondent's by-law. It is the settled law of this State, as well as the law generally through this country, that the statutes enter into and become a part of a contract of insurance just as effectively as though they were actually copied into it, and by virtue of Section 8047 the common-law presumption of death after an unexplained absence of seven years is a part of the certificate sued on in this case. Cravens v. N.Y. Ins. Co., 148 Mo. 604; Haven v. Ins. Co., 123 Mo. 416; Williams v. Ins. Co., 73 Mo.App. 607; Ampleman v. Citizens Ins. Co., 35 Mo.App. 308; Ritchey v. Home Ins. Co., 104 Mo.App. 146; Chandler v. John Hancock Mt. Life Ins. Co., 180 Mo.App. 394; Roberts v. Modern Woodmen of America, 133 Mo.App. 207. (4) And it is equally well settled that if there is a conflict between two separate provisions of a contract of insurance, or if the contract is open to two constructions, one favorable to the insured and one not, the courts will adopt the one favorable to the insured. Lamaitre v. Nat. Casualty Co., 195 Mo.App. 606; Mathews v. Modern Woodmen, 236 Mo. 342; Weist v. Ins. Co., 186 Mo.App. 22.
Benjamin D. Smith and Barbour & McDavid for respondent.
(1) The by-law which is here the subject of controversy deals with a rule of evidence and with nothing else, and relates to the manner and quantum of proof necessary to establish the death of the insured. Cobble v. Royal Neighbors of America, 219 S.W. 120; Winter v. Supreme Lodge, 96 Mo.App. 15; Duff v. Duff, 156 Mo.App. 247; Kelley v. Supreme Council, 61 N.Y.S. 394. (2) We deal here with a contract, not a mere by-law, and this because the by-law is merged as such into and has become a part of a written contract. The question then is not whether a given by-law is valid, but whether the provisions of such a by-law when embodied into the contract and when it has become a part of a contract is valid and enforcible. Purdy v. Bankers' Life Association, 101 Mo.App. 106; Goddard v. Exchange, 78 Mo. 609. (3) Sec. 3441, R. S. 1909 Cannot be so construed as to destroy the right of parties to contract in respect of any thing which is not forbidden or prohibited either directly or by the clearest implication by such statute. Cravens v. New York Life Ins. Co., 148 Mo. 583. An examination of the authorities cited in the briefs filed on behalf of appellant will disclose that in nearly every case that pretends to deal with a by-law similar to the by-law here in issue, such by-law was enacted after the certificate had been issued. There arose in all these cases the question as to whether a society had the right by an after-enacted by-law to change the terms of the contract and whether such a change as made by such by-law was a reasonable one. This question does not arise in this case. The very fact that all these cases that are cited by appellant's counsel stress the point that the by-law in question was invalid because it was enacted after the issuance of the contract supports the conclusion and idea that if such by-law had been in force at the time of the making of the contract and had become a part of such contract by express agreement these courts would have upheld the same as being entirely valid. Among all the cases cited by them dealing with this question, there is but one, to-wit, National Union v. Sawyer, 42 D. C. App. 475, which holds a by-law similar to this, in force at the date of the contract, invalid. There is an additional case to be found in Idaho Reports, not mentioned in the briefs, which is to the same effect. But the great weight of authority, supports the doctrine that such a by-law, dealing as it does, with a rule of evidence only, is reasonable, is not contrary to public policy, and is therefore valid, and especially must this be true when, as here, it was in full force at date of contract and became a part of it by its very terms. Franta v. Bohemian Union, 164 Mo. 304, is a case which deals extensively with the principles which underlie insurance of the character here in issue. (5) The insurer has the right to say upon what conditions he will take a risk upon a given life. The insurer has the right to say upon what conditions and under what circumstances it will pay benefits. Supreme Lodge v. Knight, 117 Ind. 489; Supreme Lodge v. Benes, 231 Ill. 134.
MOZLEY, C. Railey, C., dissents; White, C., dissents and thinks opinion of Sturgis, J., should be adopted. Woodson, Graves, Higbee and Walker, J.J., concur; James T. Blair, C. J., David E. Blair and Elder, JJ., dissent.
In Banc.
-- 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,...
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