Fisher v. Supreme Lodge Knights and Ladies of Honor
| Decision Date | 04 May 1915 |
| Parties | MARY A. FISHER, Respondent, v. SUPREME LODGE KNIGHTS AND LADIES OF HONOR, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Wilson A. Taylor Judge.
AFFIRMED.
Judgment affirmed.
Chas F. Krone and Aug. Walz, Jr., for appellant.
(1) Where a contract is the basis of a suit, it must be shown not in part, but in its entirety, and where by the terms of the benefit certificate, or by the terms of the preceding application for membership and accompanying medical examination, or either of these papers, each is made part of the other and of the benefit certificate, they constitute all together, the contract of insurance, in its entirety, and all of them must be introduced in evidence by the plaintiff in chief, in order to make a prima-facie case on the petition. And if not introduced in chief, defendant, at least, should be permitted to show the whole contract by way of cross-examination of plaintiff's witnesses in chief. This is assuredly so in view of section number 9 of the Act approved, March 30, 1911, and found in Laws of Missouri, 1911, page 284. Brittenham v. W. O. W., 180 Mo.App. 523-534; Loyd v. Modern U., 113 Mo.App. 19; Coscarella v. Insurance Co., 175 Mo.App. 130-138; Norristown v. Hancock, 132 Pa. 385; More v. Union, 103 Iowa 424; Protection Ins. Co. v. Foote, 79 Ills. 361; Treat v. Merchants, 198 Ills. 431; National Bank v. Ins. Co., 95 U.S. 563; Moulor v. American I. Co., 111 U.S. 335. (2) The insured, as well as the beneficiary, is bound by the laws of the order, and where, as is here the case, these laws require that proofs of death be made before a recovery can be had, and where plaintiff's petition itself, as is also here the case, expressly pleads that proofs of death have been made, by her, then and in such a case, it is necessary for plaintiff to show that proofs of death have been made in order to make a primafacie case on the petition. There is no evidence anywhere in the case that proof of death was made. Shell v. Insurance Co., 60 Mo.App. 644; Davis v. Davis, 49 Maine 282; Jackson v. Southern, 36 Ga. 429. (3) The statutes of this State, providing for the creation of fraternal beneficiary associations, require them to have a lodge system with ritualistic forms of work, and that "members shall be elected, initiated and admitted" into them in accordance with their constitutions, laws, rules, regulation and prescribed ritualistic ceremonnies." These statutory requisites are essentials which cannot be waived either by the local or general officers of an order, and no person can become a member without being initiated, nor can the person named in the benefit certificate issued upon the life of an uninitiated person, have any right to recover thereon. Initiation is condition precedent of membership, nor can it, as a statutory prerequisite be waived by officers whoever they may be. Gilmore v. Modern Brotherhood, 171 S.W. 629; Porter v. Loyal Americans, 180 Mo.App. 538; Schartle v. Modern Brotherhood, 139 Mo.App. 433; Sloan v. Loyal, 139 Mo.App. 443; Hiatt v. Fraternal, 99 Mo.App. 105; Loyd v. Modern Woodmen, 113 Mo.App. 20. (4) Where the laws of the fraternal beneficiary association itself provide that no benefit certificate shall be issued until the person whose life is insured shall have been initiated into some lodge of the order, and where the application provides that neither its acceptance nor the payment of the initial assessment and medical examiner's fee shall entitle the applicant or his beneficiary to participate in the relief fund until his medical examination has been approved by the supreme medical examiner and until he shall have been initiated, and the initiation must be had in lodge session, no recovery on the benefit certificate is possible where the person upon whose life it is written has not in fact been initiated. Loyd v. Modern Woodmen, 113 Mo.App. 20-39; Porter v. Loyal Americans, 180 Mo.App. 538-543-546; Schartle v. Modern Brotherhood, 139 Mo.App. 433-439; Sloan v. Loyal, 139 Mo.App. 443-450; Hiatt v. The Fraternal, 99 Mo.App. 105-114; 1 Bacon Benefit Societies, page 666; 1 Bacon Benefit Societies, page 121, 63A; Matkin v. Sup. Lodge, 82 Tex. 301. (5) Where, as is here the case, the defendant's answer denies decedent's compliance with the laws of the order and pleads a law requiring all applicants to submit themselves for medical re-examination if they have taken sick within thirty days after their application, and where the plaintiff's reply expressly admits such by-law under the terms of which no recovery could be had without such re-examination, and where, as is here the case, the undisputed evidence shows that the deceased applicant was sick some fifteen days thereafter and plaintiff denies he was sick when he made application, the defendant is entitled to an instruction that if the jury find the facts as herein stated, they must find for the defendant. (6) It is reversible error to submit a case to the jury under instructions which embody a theory not supported by any evidence, and it was such error, in this case, for the court to give instructions number 3 and number 4, both of which falsely assume that there was evidence that the deceased applicant had authorized some-one else to sign his application for him, or had subsequently adopted or ratified a signature made by another. Under the evidence in this case, deceased either signed himself or he did not, and, if he did not, whoever signed for him signed without either his previous authority or subsequent approval and there was no room for these instructions. Beauchamp v. Higgins, 20 Mo.App. 514; Colliott v. Amer. Mfg. Co., 71 Mo.App. 165; Moore v. Hawk, 57 Mo.App. 495. (7) Initiate means "to introduce by preliminary instruction or forms; guide primarily; admit formally; induct, as to initiate a person into an art or into a society." Century Dictionary, 3100. "The initiated, those who have been formally instructed on any particular subject or on the theories of any particular association, especially a secret one; specifically, in the early church, those who had been baptized and admitted to the full privileges of the church and to a knowledge of the more exalted teachings of Christianity." Century Dictionary, 3100. "In cases of children and much more so in the case of strangers, a special initiation was required before any person could be admitted as a member of the household." Century Dictionary (Initiation, 3100), quoting Hearn, the Aryan Household. This author uses "household" to signify what is often called the "patriarchal family," to distinguish it from the "clan." Initiate: To introduce into a society or organization; to confer membership on; especially, to admit to a secret order with mysterious rites or ceremonies. The Athenians believed that he who was initiated and instructed in the mysteries would obtain celestial honor after death. Webster's Dictionary. (8) Where, by the terms of the contract, the actual personal signature of the medical examiner and of the applicant for membership is required it is error to instruct upon the theory that another might have made the signature with the authority, or with the subsequent approval of the applicant; and where there is evidence of doubt upon the signature, it is error to refuse instruction requiring the jury to find that there must have been an actual personal signature before they can find a verdict for plaintiff. The requirement of a personal signature is a reasonable one and must be enforced. Globe Acc. Ins. Co. v. Reid, 19 Ind.App. 203; Sommers v. Kansas, 42 Kas. 619; Home Mut. v. Reil (Pa.), 17 A. 36; Fulton v. Metropolitan, 19 N.Y.S. 470; Prudential v. Cummins, 19 Ky. L. 1770; 445 S.W. 431; Sullivan v. Industrial, 73 Hun, 319; Pickett v. Metropolitan, 46 N.Y.S. 693; Whitmore v. Sup. Lodge K. & L., 100 Mo. 36. (9) The court erred in defining initiation in instruction number 2 and erred in telling the jury that if the applicant received the customary obligation and passwords and paid all assessments and dues and had an approved medical examination, then he was initiated, even though permitted to retire from the lodge without receiving the ritualistic work which he was assured he might receive at a subsequent meeting, especially in view of an express by-law to the contrary.
Williams & Rollins for respondent; Thos. J. Dixon and N. C. Fisher of counsel.
(1) A defendant who introduces testimony after the overruling of his demurrer to the plaintiff's evidence thereby waives his demurrer, and his liability must be determined from all the evidence in the case. Therefore, if the application for membership, the medical examiner's certificate, and the defendant's by-laws were a part of the contract of insurance in this case and should have been put in evidence by the plaintiff, her failure to do so was cured when these documents were placed in evidence by the defendant, and its liability must be determined from all the evidence. Merrieless v. Railroad, 163 Mo. 486; Semple v United Rys. Co., 152 Mo.App. 18; Brock v. St. Louis Transit Co., 107 Mo.App. 109; Fry v. Railroad, 200 Mo. 377. (2) When an insurance company denies all liability under the policy certificate or contract, no proof of death is necessary. United Zinc Co. v. Genl. Accident Assurance Co., 144 Mo.App. 380; Welsh v. Chicago Guaranty Co., 81 Mo.App. 30; Hayes v. Continental Casualty Co., 94 Mo.App. 10; Cauveren v. Ancient Order of Pyramids, 98 Mo.App. 433; Weber v. Ancient Order of Pyramids, 104 Mo.App. 729; Phoenix Ins. Co. v. Center, 31 S.W. 446 (Tex.) ; Siegle & Son v. Phoenix Ins. Co., 107 Mo.App. 456; Vining v. Franklin Ins. Co., 89 Mo.App. 311; Siegle & Son v. Badger Lumber Co., 106 Mo.App. 110; Amer. & Eng. Ency. Law (2 Ed.), 345; 2...
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