Dawson v. Knights of the Maccabees of the World, 17644.

• Decision Date: 06 March 1933
• Docket Number: No. 17644.,17644.
• Citation: 57 S.W.2d 748
• Parties: DAWSON v. KNIGHTS OF THE MACCABEES OF THE WORLD.
• Court: Missouri Court of Appeals

57 S.W.2d 748

DAWSON v. KNIGHTS OF THE MACCABEES OF THE WORLD.

No. 17644.

Kansas City Court of Appeals. Missouri.

March 6, 1933.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

"Not to be published in State Reports."

Action by Gerald Dawson, administrator of the estate of Charles H. Early, deceased, against the Knights of the Maccabees of the World. Judgment for plaintiff, and defendant appeals.

Affirmed.

Transferred from the Supreme Court .

John B. McIlwain, of Detroit, Mich., for appellant.

Don C. Carter, of Sturgeon, for respondent.

TRIMBLE, Judge.

The action herein is one for money had and received. Early v. Knights of the Maccabees (Mo. Sup.) 48 S.W.(2d) 890. It was tried by the court, a jury being waived. Judgment for plaintiff was rendered in the sum of $307.45 for debt and $217.05 interest. Defendant duly appealed.

Plaintiff, a resident of Boone county, Mo., received from defendant, a fraternal benefit society of Michigan, an endowment certificate, No. 283, issued to plaintiff, wherein it agreed to pay the beneficiary therein $2,000 on the death of insured, and, in case of permanent or total disability, defendant agreed to pay insured such part of said endowment sum ($2,000) as provided in the laws of the order, which agreement was expressed in these words: "In case of permanent and total disability, or upon attaining the age of seventy years, he will be entitled to receive such part of said endowment as provided in the laws of the Order."

At the time of the issuance and acceptance of said policy, section 13, art. 4, of the by-laws of 1887 relating to total and permanent disability benefits were in full force and effect, and provided as follows: "Sec. 13. A total and permanent disability to direct or perform any kind of labor or business, or upon reaching the age of 70 years, shall entitle a member holding a certificate of endowment, so disabled or aged, to the payment of one-half of the endowment to which he would be entitled at death, provided, however, that in case of total and permanent disability, satisfactory proofs must be submitted, etc., * * * and provided further, that a member shall have paid all dues and assessments from date of initiation to date of disability, or upon reaching 70 years of age. From the date of such payment such member shall only pay pro rata or one-half as much at each assessment as prior thereto. On the death of such member his heirs or assigns shall receive his endowment, less the amount which may have been paid as provided above. * * *"

The policy was dated February 11, 1889, and the above section 13 was in force, as hereinbefore stated, and remained unchanged until it was thereafter amended in 1889; the only material difference thereby made being that: "From the date of such payment (of total and permanent disability benefits) to such member, and while receiving such benefits, he shall be exempt from the payment of all dues and assessments."

It will be observed that before this amendment the insured was required to pay, during such disability, one-half of the dues and assessments, while, after the amendment, he was exempt from the payment of all dues and assessments while receiving such disability benefits.

In July, 1904, several new by-laws were enacted which attempted to change insured's substantial contractual rights under his certificate. These amendments provided that any one receiving disability benefits should continue the payment of dues and assessments during disability, the same as he would have had to pay had such disability not occurred. Such amended by-laws also provided that upon a total and permanent disability arising, such disabled insured should receive one-tenth (instead of one-half) part of his certificate, paid in quarterly installments, and, upon his death, the face of the certificate would be paid to the beneficiary less the disability benefits paid to him during life.

Plaintiff, on April 29, 1922, over thirty-three years after the date of his insurance, lost his sight, and being totally and permanently disabled, applied to defendant for the disability benefits allowable under his endowment certificate. The application was approved on May 8, 1922, and thereupon a disability certificate, No. 10,853, was issued and delivered to plaintiff.

From that time insured paid the full monthly rate of $6 and a per capita tax of 10 cents per month, making a total of $6.10 per month. But on October 1, 1923, insured, although still totally and permanently disabled and entitled to benefits, paid an increased monthly rate of $15.60, and continued to do so until February 1, 1928 (a period of five years, eight months, and twenty-three days), when he was advised...