Crnic v. Croatian Fraternal Union of America

• Decision Date: 02 December 1935
• Docket Number: No. 18414.,No. 18413.,18413.,18414.
• Citation: 89 S.W.2d 683
• Parties: CRNIC v. CROATIAN FRATERNAL UNION OF AMERICA.
• Court: Missouri Court of Appeals

89 S.W.2d 683

CRNIC v. CROATIAN FRATERNAL UNION OF AMERICA.

No. 18413.

No. 18414.

Kansas City Court of Appeals. Missouri.

December 2, 1935.

Rehearing Denied January 6, 1936.

Appeal from Circuit Court, Adair County; Harry Rouse, Judge.

"Not to be reported in State Reports."

Consolidated suits by Josip Crnic against Croatian Fraternal Union of America. From judgments for plaintiff, defendant appeals.

Affirmed on condition that plaintiff make remittiturs.

See, also, 228 Mo.App. 251, 66 S.W.(2d) 161.

F. A. Bogadek, of Pittsburgh, Pa., George R. Allen and Richard F. Allen, both of Topeka, Kan., and Edward E. Naber, of Kansas City, for appellant.

E. M. Jayne and Rieger & Rieger, all of Kirksville, for respondent.

REYNOLDS, Commissioner.

On December 15, 1932, the plaintiff filed his petition in the circuit court of Adair county in cause No. 21765 therein (which cause bears the number 18413 in this court) to recover against the defendant for alleged disability benefits in the sum of $520 alleged to be due during a period from December 15, 1931, to December 15, 1932, at the rate of $10 per week from defendant under its by-laws to plaintiff as a member of the defendant order. Afterward, the plaintiff commenced a second action against the defendant by filing his petition in the circuit court of the same county in cause No. 22182 therein (which cause bears the number 18414 in this court) to recover judgment for $700 alleged to be due him as a member of the defendant order under its by-laws for disability benefits between the dates of December 15, 1932, to April 18, 1934 (the date of the filing of said action), at the rate of $10 per week. The two suits were consolidated and tried together before the trial judge without a jury (a jury being waived), resulting in a judgment for plaintiff in the first suit for $579.80 to bear interest from the date of its rendition at 6 per cent. and in the last-named suit for $724.50 to bear interest at 6 per cent. from the date of its rendition.

The petition in the first cause is as follows:

"Comes now the plaintiff and states that at all times herein mentioned the defendant was and is, a corporation organized under the law as an insurance company, with authority to transact the business of insuring persons against, among other things, sickness and disease, in the State of Missouri. That plaintiff is a resident of Adair County, Missouri.

"Plaintiff states that he is now and at all times herein mentioned has been, a member of defendant union, and has paid all dues, assessments and premiums charged against him and is now and has been at all said times, a member in good standing of defendant union.

"Plaintiff further states that it is provided in the laws, rules and regulations of defendant union that a member who pays the sum of $1.65 per month in payment for the $2.00 per day or $14.00 per week Sick Benefits, shall after exhausting his Sick Benefits for the 12 months, shall receive the sum of $10.00 per week until such time as he shall become well.

"Plaintiff further states that he paid to defendant, the dues, entitling him to receive the sum of $2.00 per day or $14.00 per week Sick Benefits, for all said times herein mentioned, to-wit: For the period of time beginning July 30th, 1929, and ending July 30th, 1930, after which time according to said by-laws, rules and regulations, plaintiff is entitled to the sum of $10.00 per week until he shall become well. That plaintiff has up to the present time paid all such dues, assessments and premiums charged against him for said benefits aforesaid.

"Plaintiff now states that on and prior to said July 30, 1929, he became ill, diseased and sick, with chronic bronchitis, intestional toxaemia, bronchial asthma, myopia, and suffered from a left inguinal hernia, which sickness, disease and physical condition rendered him totally disabled from and prior to said date to the present time and still so continues. That due proof of his said sickness, disease and physical condition was made by plaintiff to defendant on and prior to July 30th, 1929, and said proofs of sickness and total disability were accepted and approved by defendant, and defendant has paid plaintiff for said disability, sickness and physical condition the sums of money provided in the by-laws, rules and regulations of defendant up until December 15, 1930, but since said date has failed and refused to pay plaintiff any sum whatsoever; that by the terms of said by-laws, rules and regulations of defendant there is due plaintiff the sum of $10.00 per week for fifty-two weeks, from December 15, 1931 and until December 15, 1932 in the full sum of $520.00 which sum is now due plaintiff from defendant by reason of the disease and sickness of plaintiff which at all times prior to July 30, 1929 to this date and still so continues and he was and is totally disabled by reason of the aforesaid.

"Wherefore, plaintiff demands judgment against defendant for the said sum of $520.00 and costs of suit."

The petition in the second case is substantially the same as in the first case, except that it charges that defendant had, upon plaintiff's proofs of sickness and total disability furnished to it and accepted by it, paid plaintiff for his disability and sickness up until December 15, 1931, but since said date had failed and refused to pay plaintiff any sum whatever on account thereof. It alleges also the filing of the petition in the first case herein referred to on December 15, 1932, for the recovery of $520 on account of payments due between December 15, 1931, and December 15, 1932, and alleges that since said date the sum of $700 sued for had accrued to plaintiff for payments due on account of said disability between December 15, 1932, and April 18, 1934, the date of the filing of the second suit.

Defendant answered the petition in each case. The answers in the two cases are practically the same. Each tenders a general denial of all allegations of the petition being answered; and each, in addition to the general denial, sets up certain sections of defendant's by-laws and denies liability on account of plaintiff's alleged noncompliance with the requirements of the provisions of the same and sets up certain other by-laws denying the right to benefits to any member on account of sickness or disability of the character suffered by plaintiff and sets up that by reason thereof plaintiff is not entitled to recover. Each alleges that plaintiff had been fully compensated for all his sickness and disability and is not entitled to recover under either of his petitions herein.

Each denies liability upon the part of the defendant for the alleged reasons that at none of the times mentioned in the petition answered had plaintiff been so disabled that he had been unable to perform any work by reason of his sickness and disability or had plaintiff ever been sick or totally disabled within the meaning of defendant's by-laws.

Each further sets up that plaintiff was not entitled to recover for the reason that he had failed to pay dues for the month of August, 1932; that, by reason of such failure, he had under defendant's by-laws forfeited all rights to any and all benefits against defendant; that his membership had lapsed and become forfeited; and that, since said date, he had not been reinstated as required by the by-laws and had not been a member of defendant order in good standing.

The answers further allege generally that plaintiff was bound by each and every by-law of the order — not only that he was bound by those in force at the time he became a member thereof, but that he was bound by any change, amendment, or modification of any of the same thereafter made and by those that might have been adopted since his membership by reason of his agreement at the time he became a member to abide thereby and comply therewith.

Each answer admits that defendant was authorized to do business in Missouri as a fraternal beneficiary society engaged in insuring its members against sickness, disease, and disability; that plaintiff had become a member of the Croatian League of Illinois, a fraternal beneficiary society, which league thereafter was merged into and absorbed by the National Croatian Society which took over its assets and membership and assumed its liabilities November 6, 1924; that plaintiff thereupon became a member of such society; that such society, through an amendment to its charter in 1925, changed its name to that of the Croatian Fraternal Union of America, by which name it is sued and made defendant herein.

Each answer pleads certain sections of defendant's by-laws effective from and after October 1, 1932, as amendments to its by-laws previously in force as of date July 30, 1929, providing a different scale of benefits from that in force July 30, 1929, and a different method and manner of computation of benefits by which the total benefits to which any member might be entitled were limited to fixed sums provided by said amendatory sections and by which the number of days of full benefits to which any member might be entitled was reduced to ninety days in any year or twelve-month period and by which other material changes and requirements were made; and each pleads that, by reason of the provisions of such amendatory sections becoming effective October 1, 1932, plaintiff is not entitled to recover.

To the defendant's answer in each of these cases, the plaintiff filed reply, denying each and every allegation of such answer, and, among other matters, by appropriate pleas, setting up in bar of the defenses set up in defendant's answers two certain final judgments alleged to have been obtained by him as plaintiff against the defendant in the circuit court of Adair county, the first of which was rendered May 19, 1931, in cause No. 20798 pending in said court for benefits accruing from December 15, 1929, to December 15, 1930, to plaintiff as a member of defendant order and covering the...