Daffron v. The Modern Woodmen of America

• Decision Date: 19 May 1915
• Citation: 176 S.W. 498,190 Mo.App. 303
• Parties: LETTIE R. DAFFRON, as Administratrix of the Estate of NORVELL C. DAFFRON, Deceased, and JESSIE J. DAFFRON, JOHN L. DAFFRON and GLADYS G. DAFFRON, Minors, by LETTIE R. DAFFRON, Guardian and Curator, Respondents, v. THE MODERN WOODMEN OF AMERICA, Appellant
• Court: Missouri Court of Appeals

176 S.W. 498

190 Mo.App. 303

LETTIE R. DAFFRON, as Administratrix of the Estate of NORVELL C. DAFFRON, Deceased, and JESSIE J. DAFFRON, JOHN L. DAFFRON and GLADYS G. DAFFRON, Minors, by LETTIE R. DAFFRON, Guardian and Curator, Respondents, v. THE MODERN WOODMEN OF AMERICA, Appellant

Court of Appeals of Missouri, Springfield

May 19, 1915

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Wayne County Circuit Court.--Hon. E. M. Dearing, Judge.

REVERSED AND REMANDED (with directions).

STATEMENT.--This is an action brought to recover on a fraternal benefit certificate issued by the defendant (appellant) on the life of John W. Daffron which had been made payable to the wife of the insured but in which prior to his death his minor children were substituted as beneficiaries. No point is made as to the change of beneficiaries; or that the application originally acted upon became a part of the certificate afterward issued and now in suit. One of the minor children having died, this suit was brought by Lettie R. Daffron as administratrix of the estate of the deceased child, and as guardian and curator of the other minor children of the insured.

The petition is in two counts, the first being to recover two thousand dollars on the certificate, and the second being for the purpose of cancelling a receipt, discharge or compromise settlement made some time prior to the institution of this suit by Joseph F. Lindsay who was at the time it was given the guardian and curator of the minor children named in the certificate.

For aught that appears in the record the case was without objection tried and treated as a law case throughout, and evidence as to all the issues was offered to the jury.

The verdict was in favor of the defendant.

The plaintiffs filed a motion for a new trial, assigning ten grounds of error, one of which is as follows: "Because the court erred in excluding the evidence offered by the plaintiffs for the purpose of establishing an estoppel of the defendant to defend on the ground of misrepresentation of the age of John W. Daffron." Another was to the effect that the trial court erred in refusing instructions offered by the plaintiffs on the theory of waiver and estoppel.

The court sustained the motion for a new trial on the following grounds: "The court sustains the motion for a new trial for the reason that the court committed error in rejecting testimony offered on the part of the plaintiffs on the plea of waiver and estoppel and in refusing instructions asked by plaintiffs upon said plea."

As the first count of the petition, the answer, and the reply raised the propositions on which the trial court sustained the motion for a new trial, we will first discuss this phase of the case.

As appellant has fairly summarized the pleadings in this connection in its brief, we hereby adopt its statement with reference thereto:

"The petition may be considered as containing two counts, the first of which declares on a benefit certificate alleging in appropriate terms its issuance by the defendant, setting it forth in haec verba, averring full and complete compliance with all its terms and provisions, as also the by-laws of defendant society. This count of the petition further alleges that all dues were paid and that John W. Daffron was a member of defendant society in good standing at the time of his death, August 18, 1908; that the plaintiff caused death proofs to be made up and forwarded to defendant; and that payment of the face value of the policy--$ 2000--was demanded of defendant and refused, and judgment is prayed in that amount with interest. . . ."

"The defendant, in its answer, admits the issuance of the original certificate, the surrender thereof and the issuance in lieu of it of the certificate sued on with beneficiaries as alleged in plaintiff's petition. It admits the death of John W. Daffron, that all assessments were by him paid and that death proofs were filed with the defendant by the plaintiffs. It admits also that it has denied, and now denies liability on said certificate and that it has refused and now refuses to pay the beneficiaries named therein the amount thereof. It denies that John W. Daffron was, at the time of his death, or any of the times mentioned in plaintiffs' petition, a member in good standing of this defendant society and avers that the certificate sued on was issued as upon the original application and with the express understanding that the condition recited in said original application continued in full force and effect as conditions of said new certificate.

"The defendant, further answering, then denies all allegations of said petition, except as therein admitted to be true. Proceeding, the answers sets up affirmative grounds of defense, as follows:

"In its first affirmative ground of defense, it is alleged that in said application, which, by its own terms, is made a part of the contract and of the benefit certificate, as issued, John W. Daffron warranted and agreed that he was born on the 27th day of December, 1853, and that he was at the time he made his application, between forty-four and forty-five years of age, and this count of the answer avers that said answer was false and untrue, and that in truth and fact the said Daffron was born in the year 1851 or 1852, and was at the time of his making such application, and of the issuance of the certificate sued on, over forty-five years of age, and by reason of said false statement and breach of warranty, in respect of the matters above mentioned, said benefit certificate sued on became, was, and is null and void. . . .

"In the fourth affirmative ground of defense, contained in said answer, are set forth various sections of the by-laws of the defendant society, relating particularly to qualifications for membership, the age limit therefor, the assessment rates at various ages and the time when certificates shall become operative. It is then averred in this fourth count, that Daffron was not at the time he made his application qualified to become a member of this society in that he was at that date past forty-five years of age and therefore ineligible, and that by reason thereof no liability arose against this defendant for the payment of the benefits. That Daffron did not possess the qualifications prescribed under the by-laws for an applicant, in that he was over forty-five years of age at the date thereof, and that by reason of this fact his certificate herein sued on has been null and void at all times, and that all payments made by way of assessments, were under the contract and agreement and under the by-laws of the society forfeited absolutely to the defendant society. . . .

"The plaintiffs by way of replication denied specifically under four different subheads that John W. Daffron made any false answer in respect of the date of his birth or as to his age; deny that he was over age at the date when he became a member and deny that he thereby forfeited all rights under said certificate and all assessments paid thereon. Further replying, the plaintiffs aver that 'every answer given in his said application by the said Daffron and every statement, representation, and warranty made by him therein for membership was a true and correct answer, statement, representation and warranty.'

"The replication, proceeding, pleads waiver and estoppel against the defendant in that it alleges that one J. W. Cannon was a Deputy Head Consul of defendant society, and was at Piedmont, Missouri, and organized a camp for the defendant, and in doing so, took the application of John W. Daffron, on which the policy now in question was issued. That the said Cannon was by Daffron made fully acquainted with all the facts touching the question of the age of the applicant. That he was made acquainted with the fact that there was some question in respect of his age and that the said Cannon as the agent of said society, after hearing the facts found and determined that the applicant was born December 27, 1853, and that his knowledge and conduct and finding were imputable to the defendant, and that it is thereby estopped from now asserting the forfeiture of said certificate on account of such statement in respect of the applicant's age and date of birth. It further avers that the clerk of the local camp at Piedmont, Missouri, one T. E. Daffron, was likewise familiar with all the facts relating to the dispute and difference in respect of the age of John W. Daffron, and that with that knowledge he accepted dues of the said John W. Daffron, and that by reason thereof the defendant is now estopped from claiming a forfeiture by reason of the statement in respect of age and date of birth of the applicant. . . ."

The defendant is a fraternal benefit society and has fully complied with our laws relating to such associations. It has certain by-laws governing and entering into the contract of insurance, binding on the applicant and the beneficiaries named in the certificate, some of which are as follows:

"Sec 8. Rights of a Beneficial Member.--Every beneficial member shall be entitled to all the rights and privileges of the order while in good standing, and upon his death (occurring while in good standing) the beneficiary or beneficiaries named in the benefit certificate shall be entitled to participate in the benefit fund of this order to an amount not exceeding the amount stated in his said certificate; provided, however, that all the conditions and requirements contained in his benefit certificate, and in the by-laws of this society, as the same now exist, or may be hereafter modified, amended or enacted, shall have been fully observed and complied with."

"Sec 196. May Appoint and Remove.--The Head Consul shall have authority to...