Devore-Norton v. Bhd. Firemen

• Decision Date: 10 July 1928
• Docket Number: Case Number: 18446
• Citation: 1928 OK 454,270 P. 12,132 Okla. 130
• Parties: DeVORE-NORTON v. BROTHERHOOD of LOCOMOTIVE FIREMEN and ENGINEMEN.
• Court: Oklahoma Supreme Court

1928 OK 454

270 P. 12

132 Okla. 130

DeVORE-NORTON v. BROTHERHOOD of LOCOMOTIVE FIREMEN and ENGINEMEN.

Case Number: 18446

Supreme Court of Oklahoma

Decided: July 10, 1928

Syllabus

¶0 1. Insurance--Life Policy of Foreign Corporation--Provision for no Liability Arising from Disappearance of Insured and Presumption of Death--Provision Enforceable if Valid in State Where Contract Made.

An insurance contract of a foreign corporation which provides that a liability arising from the disappearance of a member or the presumption of the death of a member arising from any such disappearance shall not be incurred by the insurer and that it shall only be liable for the payment of a death claim when there is positive proof of the death of a beneficiary member, will be enforced in this state when the contract emanates from a state wherein the rule of law exists that such provision is valid.

2. Same--Proof of Death by Circumstantial Evidence not Excluded by Provision.

A provision in a mutual beneficiary life insurance contract that a liability arising from the disappearance of a member or the presumption of the death of a member arising from any such disappearance shall not be incurred by the insurer and liability shall only attach for the payment of a death claim where there is positive proof of the death of a beneficiary member, does not exclude proof of death by circumstantial evidence.

3. Same--Action on Beneficiary Certificate--Judgment for Defendant on Pleadings Improper Where Petition Alleged Death of Insured.

In an action to recover on a beneficiary insurance contract, the petition alleged that the insured died on September 10, 1917, and was a member of the defendant organization and in good standing at the time of his death. With this allegation in the petition, the trial court committed error when it sustained defendant's motion for judgment on the pleadings.

Error from District Court, Payne County; Charles C. Smith, Judge.

Action by Maude Devore-Norton against the Brotherhood of Locomotive Firemen and Enginemen. Judgment for defendant, and plaintiff appeals. Reversed and remanded with directions.

Wilcox & Swank, for plaintiff in error.

Randolph, Haver, Shirk & Bridges, for defendant in error.

HEFNER, J.

¶1 This action was begun in the district court of Payne county on the 20th day of August, 1926, by the plaintiff in error, Maude DeVore-Norton, hereinafter called plaintiff, against the defendant in error, Brotherhood of Locomotive Firemen and Enginemen, a fraternal beneficiary society, hereinafter called defendant.

¶2 The action sought to collect $ 1,500 alleged to be due on a beneficiary certificate issued by the defendant on the 22nd day of September, 1913, to Herbert J. DeVore, and payable upon his death to the plaintiff. In her petition, among other things, she alleged that on or about the 10th day of September, 1917, Herbert J. DeVore left his home in the city of Cushing, Okla., at which place said Herbert J. DeVore and his wife, the beneficiary in said certificate and the plaintiff herein, were residing for the purpose--as he announced to his family--of going on a fishing trip; that thereafter and on the next day, said Herbert J. DeVore not having returned to his home, a search was instituted by the plaintiff herein, and the authorities of the city of Cushing were notified and requested to participate in the search for the said Herbert J. DeVore, and as a result of the search the personal effects of the said Herbert J. DeVore were found on the bank of the Cimarron river near the city of Cushing, and that, accordingly, the river was dragged in both directions from where said personal effects were found, but without effect, and the body of the said Herbert J. DeVore was not recovered.

¶3 The defendant admitted the issuance of the certificate, but denied the other material allegations of the petition and pleaded that the action was barred because the suit was not commenced within a certain period of time from the final rejection of the claim. The defendant further pleaded that the express terms of the certificate made the constitution of the defendant a part of the insurance contract, and that one of its provisions was as follows:

"A liability arising from the disappearance of a member or presumption of the death of a member arising from any such disappearance, shall not be incurred by the Brotherhood. The Brotherhood shall only be liable for the payment of a death claim when there is positive proof of the death of a beneficiary member."

¶4 The plaintiff filed a reply to defendant's answer wherein, among other things, she alleged:

"Plaintiff further alleges that the defendant has at all times denied liability to this plaintiff in the sense that it has refused to pay the amount of said certificate, but alleges that on the 3rd day of August, 1925, the defendant, through its duly authorized agent, one A. H. Hawley, general secretary and treasurer, admitted liability in writing by a letter of that date captioned at Cleveland, Ohio, addressed to Hunt, Baldwin & Putt, Concordia, Kansas, attorneys for the plaintiff, wherein it was stipulated 'if the death of Mr. DeVore can be definitely established at any time between his disappearance in 1917 and the date of his expulsion April 2, 1920, we will be glad to acknowledge liability on his certificate; but if his death cannot be established prior to April 2, 1920, at the time of his expulsion, we cannot acknowledge any liability whatever on account of his membership in our organization.' A copy of said letter is hereto attached, marked 'exhibit A' and made a part of this reply."

¶5 The letter attached as "exhibit A" is as follows:

"August 3. 1925.

"I have your letter of July 30th in connection with the above matter, and upon examination of our files I find that in October, 1919, we received a communication from the secretary of our lodge calling our attention to the disappearance of Herbert J. DeVore and in answering this communication we referred him to the provisions of our constitution wherein we do not pay for the disappearance of a member, but require positive proof of death.

"In this communication he referred to the matter of Mrs. DeVore paying the assessments of her husband to the conclusion of the seven-year period, but she did not want to do this unless she could be guaranteed that at the expiration of seven years she would be entitled to receive the amount of the certificate. I find from our records Mr. DeVore was expelled from the organization April 2, 1920, and therefore he has not been a member of the organization since that time. I find that in July, 1923, we had some correspondence with Braucht & Braucht, attorneys of Newkirk, Okla., in connection with this matter and this correspondence continued until August, 1923, when we answered them requesting that they furnish us with necessary forms or information showing the death of Mr. DeVore. We heard nothing from them until September, 1924, when they again took the matter up with us, and at that time we advised that if they would submit proof which they claim they had with reference to the death of Mr. DeVore, we would be glad to take the matter up further. Since then we have heard nothing whatever in connection with this case, and I find that my assistant in corresponding with these gentlemen neglected to advise them that Mr. DeVore had been expelled from the organization in April, 1920.

"If the death of Mr. DeVore can be definitely established any time between his disappearance in September, 1917, and the date of his expulsion April 2, 1920, we will be glad to acknowledge liability on his certificate, but if his death cannot be established prior to April 2, 1920, at the time he was expelled, we cannot acknowledge any liability whatever on account of his membership in our organization.

"If, as indicated above, you can furnish its with necessary proof establishing the death of Mr. DeVore prior to April, 1920, we will be glad to go into the matter further."

¶6 The defendant filed a motion for judgment on the pleadings, and the court sustained the motion and dismissed plaintiff's cause.

¶7 For reversal, plaintiff assigns as error the action of the trial court in sustaining the motion of the defendant for judgment on the pleadings.

¶8 The pleadings admit that no dues have been paid since April 2, 1920. Since no dues were paid, under the terms of the policy, it lapsed on that date. Suit was not brought within five years from that date, and unless the pleadings show that the claim was not finally rejected on that date, the cause of action would be barred by the five-year statute of limitation. If it be true that the insured died September 10, 1917, and the plaintiff relies on the proposition that regardless of the presumption of death, actual death occurred on that date, and that satisfactory proof of death on that date will be made, the action is barred by limitation if the claim was at that time finally rejected by the defendant. If the deceased died after April 2, 1920, the policy had lapsed and no recovery can be had thereon.

¶9 Plaintiff urges that the statute of limitation is not applicable, because the defendant up to the time of the filing of the petition had not finally rejected the claim. She pleaded the letter, hereinbefore set forth, wherein the defendant stated that if the death of the deceased could be definitely established at any time between the dates of September, 1917, and the time of his expulsion, April, 1920, the company would be glad to acknowledge liability on the certificate, but if his death could not be established prior to April 2, 1920, the time he was expelled, the company could not acknowledge any liability whatever on account of his membership in the organization. The letter stated further, in substance, that if the plaintiff could furnish the company with necessary proof, establishing the death of the deceased prior to April 2, 1920, it would be glad to go into the matter further.

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