Edmonds v. Modern Woodmen of America
| Decision Date | 06 May 1907 |
| Citation | 102 S.W. 601,125 Mo.App. 214 |
| Parties | H. E. EDMONDS, Respondent, v. MODERN WOODMEN OF AMERICA, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Carroll Circuit Court.--Hon. John P. Butler, Judge.
AFFIRMED.
Judgment affirmed.
Benj. D. Smith and Tunnell & Hart for appellant.
(1) The court had no right to reject Messrs. William Fulcher, Walter Bowman and George Frazier upon the voir dire examination of the jury for the sole reason that they were members of the appellant society. No evidence of prejudice on their part was shown, in fact, no questions along that line were asked. (2) The court should have given to the jury instructions numbered 3 and 4 asked by the appellant. It being admitted that Edmonds was over the age of forty-five years the only question for the jury was as to the existence of a valid by-law fixing the age at which members could be admitted to membership in the appellant society, and if they found from the evidence that it was provided by the by-laws of appellant that a person over the age of forty-five years could not become a member of appellant society they could have found for the defendant, here appellant. Hunt v. Supreme Lodge Chosen Friends, 64 Mich. 671, 31 N.W. 576; United Society v. White, 100 Pa. St. 12; Insurance Co. v France, 91 U.S. 510; Lenz v. Insurance Co., 8 Mo.App. 353; Lloyd v. Modern Woodmen of America, ___ Mo.App. ___, 87 S.W. 530; Lavin v. Grand Lodge A. O U. W., ___ Mo.App. ___, 78 S.W. 325; Harvey v. Grand Lodge A. O. U. W., 50 Mo.App. 463; Chadwick v. Order of Triple Alliance, 56 Mo.App. 463; Borgraefe v Knights of Honor, 22 Mo.App. 141; McMahon v. Maccabees, 151 Mo. 522, 52 S.W. 384; Lyon v. Royal Society of Good Fellows (Mass.), 26 N.E. 236; McCoy v. Insurance Co. (Mass.), 25 N.E. 289; Royal Highlanders v. Scoville (Neb.), 92 N.W. 206; Driscoll v. Modern Brotherhood of America (Neb.), 109 N.W. 158; Graves v. M. W. A. (Minn.), 89 N.W. 6; Modern Woodmen of America v. Tevis, 117 F. 369, 54 C. C. A. 293, and cases cited therein.
John S. Crawford and Lozier, Morris & Atwood for respondent.
(1) On the voir dire examination of the jury, the three members of the panel who were members of the defendant society were properly excused. They were clearly disqualified by reason of such membership and interest in the result of the trial. McCarthy v. Railroad, 92 Mo. 536; State v. Bank, 80 Mo. 626; State v. Miller, 156 Mo. 76; State v. Goldsoll, 10 Mo.App. 482; Eberle v. St. Louis Public Schools, 11 Mo. 247; Fine v. St. Louis Public Schools, 30 Mo. 166; Fulweiler v. St. Louis, 61 Mo. 479; 1 Thompson on Trials (1 Ed.), secs. 63, 64. (2) The court submitted to the jury under proper instructions all questions of fact involved in this cause, and the finding of the jury thereon is conclusive, there being substantial and ample evidence to support the verdict. Bradford v. Rudolph, 45 Mo. 426; Lail v. Express Co., 81 Mo.App. 232; St. Louis v. Lannigan, 97 Mo. 175; Murphy v. Gillum, 79 Mo.App. 564. (3) The application of Isaac Edmonds showed that he was either over the age of forty-five years or that his age was doubtful by reason of the conflict between the date of his birth and his attained age. Defendant's failure to ascertain applicant's true age, its acceptance of him as a member, its issuance to him of the benefit certificate, and its receipt of dues and assessments thereon for nearly nine years amounts, in law and fact, to a waiver of the provisions of its by-laws limiting its membership to those under forty-five years of age at date of entry, and conclusively estops defendant from denying liability on such benefit certificate. Reed v. Bankers' Union of the World, 121 Mo.App. 419, 99 S.W. 55; Fulkerson v. Lynn, 64 Mo.App. 653; Bishop on Contracts, sec. 792; McMahon v. Maccabees, 151 Mo. 537; Hirschl on Frat. Societies, p. 34; Bacon on Ben. Soc. (1 Ed.), secs. 427, 434; Harvey v. Grand Lodge, 50 Mo.App. 472; Chadwick v. Triple Alliance, 56 Mo.App. 463; Grand Lodge v. Reneau, 75 Mo.App. 402; Shotliff v. Modern Woodmen, 100 Mo. 138.
The defendant is a fraternal benefit society and issued to the plaintiff's deceased husband a benefit certificate of life insurance in the sum of two thousand dollars. Upon the death of deceased defendant refused payment and the present action was begun in which plaintiff prevailed in the trial court. According to a by-law of the society the defendant was forbidden to receive into membership or issue certificates to persons over forty-five years of age. Deceased was just over that age when he made his written application for the certificate on the eleventh of November, 1896. Besides a preliminary objection to excusing members of the jury for cause, there were two principal questions presented; first, whether deceased misrepresented his age in the application; and second, if he did not, could defendant bind himself to pay a certificate issued to a person of an age to whom the by-laws forbid membership?
There were certain citizens called to serve as jurors. They were members of the defendant society and as such their assessments would be affected by the result. Interest in litigation though as remote as that of a taxpayer who would be compelled to contribute his mite to the payment of any judgment obtained against a county or municipality was sufficient, at common law, to disqualify a citizen thereof proposed as a juror. We now have a statute qualifying them, but there is no statute changing the rule as to members of an organization like defendant. The trial court properly excluded them. [Eberle v. St. Louis Public School, 11 Mo. 247, Judge SCOTT'S opinion, approved in Fine v. St. Louis Public Schools, 30 Mo. 166; Fulweiler v. St. Louis, 61 Mo. 479.]
It appears that in the printed application blank which was filled out and signed by deceased there was a question as to his age. The blank was in these words: "I was born in the State of ___ on the ___ day of ___ 18__, and am now between ___ and ___ years of age. " This was filled out by deceased in ink so as to read as follows: "I was born in the State of Canada on the twenty-second day of August 1851, and am now between forty-four and forty-five years of age." We say that deceased gave the date of his birth as in the year 1851, for the reason that the jury has so found. The facts surrounding the matter of dispute were these. The blank was first filled with the year 1852, then the figure 1, was drawn over and through the figure 2, in a different colored ink, so that the figure 1 stood out in such prominence as, connected with the testimony in plaintiff's behalf, well justified the jury in finding that the year of deceased's birth was stated to be in 1851. But in addition to that it was shown that defendant, in 1903, transcribed its records onto what was known as card records, and in so doing it transcribed the application as stating deceased's birth to have been in 1851. So therefore we entertain no doubt the jury were correct in finding that when the application was received by defendant, it was received as stating his birth to have been in that year. Being born in that year, it was apparent to defendant that he was more than forty-five years of age when it issued the certificate to him. We are not unmindful of the immediate, subsequent part of his statement, viz., that he was "now between forty-four and forty-five years of age." If he was born in 1851, he was necessarily over forty-five and not between forty-four and forty-five. But we take it to be the more reasonable view to regard that as the erroneous conclusion or calculation from the first statement. The truth doubtless is, and it is borne out by the different colored ink, that some other person filled out the application and when deceased came to sign it, he noticed the wrong year of his birth, changed it, and did not notice the statement of his age in years which immediately followed.
Coming to the second question above noted, we find defendant stoutly maintaining that notwithstanding its officers who took and who accepted the application and those who afterwards re-entered it in the card records of the society, knew deceased was over forty-five years of age, and notwithstanding the defendant collected dues from him and retained him in fellowship a period of about nine years reaching from his initiation to his death, yet it could not bind itself by contract, with one older than was permitted by its by-laws. The defendant's point includes a denial of its liability to the law of estoppel and waiver. Whatever may be the rule in some jurisdictions, we regard it as well settled in this State that a fraternal society in prosecuting the insurance feature of its existence, is subject to the law of waiver, or to be held estopped by its conduct. [McMahon v. Maccabees, 151 Mo. 522; 2 Bacon, Ben. Societies, secs. 434, 427; Callies v. Modern Woodmen, 98 Mo.App. 521, 72 S.W. 713; Shotliff v. Modern Woodmen, 100 Mo.App. 138, 73 S.W. 326; Andre v. Modern Woodmen, 102 Mo.App. 377, 76 S.W. 710; Weber v. Order of Pyramids, 104 Mo.App. 729, 78 S.W. 650.] To these plaintiff has added in her brief a number of other cases from other states. It is said in the case first cited that a member is presumed to know the laws of such society...
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