Foster v. Modern Woodmen of America
| Decision Date | 29 January 1940 |
| Docket Number | No. 19493.,19493. |
| Citation | 138 S.W.2d 18 |
| Parties | FOSTER v. MODERN WOODMEN OF AMERICA. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.
Action by Bessie I. Foster against the Modern Woodmen of America, a corporation, to recover on a fraternal benefit certificate issued by defendant. From an order granting plaintiff's motion for new trial, after verdict and judgment for defendant, defendant appeals.
Affirmed.
Adams, Adams & Adams, of Kansas City, George G. Perrin, George H. McDonald, and Alfred S. Edler, all of Rock Island, Ill., and Nelson C. Pratt, of Omaha, Neb., for appellant.
Edgar J. Keating and Robert B. Vaughn, both of Kansas City, for respondent.
CAMPBELL, Commissioner.
Plaintiff brought this suit on October 30, 1935, to recover $1500 on a benefit certificate issued on September 15, 1923, by the defendant, a fraternal benefit society, to Joseph M. Smith, one of its members, in the amount of $3000, made payable to plaintiff and her sister as beneficiaries in equal amounts. The defendant, on trial to a jury, had a verdict and judgment. The plaintiff's motion for new trial was sustained on the ground the court erred in giving defendant's instruction "G". The defendant has appealed.
The petition, upon which the cause was tried, alleged facts sufficient to entitle plaintiff to the relief sought.
The answer admitted the issuance of the certificate as alleged in the petition; that plaintiff was the beneficiary therein to the extent of $1500; that insured died on November 28, 1933; that at the time of his death he was in good standing; that during the life of the insured he performed all of the requirements of said certificate on his part to be kept and performed; that plaintiff had offered to furnish proofs of death and had demanded payment; that the defendant had denied liability and refused to pay her and pleaded seven defenses, described in the answer as "affirmative defenses", as follows:
First, that insured, on September 13, 1924, changed the beneficiaries in his certificate from plaintiff and her sister to her sister alone; that said "certificate was delivered to and accepted by" insured. Second, that after the death of insured defendant paid plaintiff's said sister the full amount of the insurance. Third, that after the death of insured and before defendant had paid the full amount of the certificate to plaintiff's said sister, plaintiff knew that her sister was demanding and claiming the full $3000 from defendant and knew that her sister was preparing proofs of death; that she assisted her sister in preparing and submitting said proofs of death and that plaintiff, with knowledge of the claim of her sister for the full amount of said certificate, to wit, $3000, stood by and failed to notify defendant of her claim; that defendant relying upon the facts stated in the proofs of death and the statements made therein by plaintiff and her sister without any knowledge or notice that said plaintiff claimed any of said benefits, paid plaintiff's said sister the full amount of the certificate; that by reason of all of these circumstances, plaintiff was estopped from claiming or asserting any claim for any of the benefits arising out of the membership of insured in defendant's society. Fourth, that plaintiff's sister died shortly after she collected said insurance money; that plaintiff did not notify defendant of said death and defendant did not learn thereof until after the filing of the petition in this cause, which was long after the sister's estate had been fully administered upon and all claims filed against it were barred; that plaintiff asserted a claim against the administrator of her sister's estate "alleging" one-half of the proceeds of the certificate paid to plaintiff's sister by defendant was due plaintiff; that on April 12, 1935, plaintiff entered into an agreement with said administrator by which plaintiff, for a good and valuable consideration, acknowledged full payment, satisfaction and accord of all claims against the estate of her sister arising out of the proceeds of the benefit certificate held by insured; that plaintiff stated in said agreement that the change in the beneficiaries was not fraudulent or wrong but was proper; that plaintiff did not notify defendant that she was asserting any claim against it until long after April 14, 1935, the date on which all claims against the estate of her sister were forever barred; that by virtue of plaintiff's conduct in electing to hold the estate of her sister for one-half of the proceeds of the certificate and in compromising said claim with the administrator of her sister's estate, and "in standing by and allowing the time in which to file demands against the estate of Edna Smith Carroll Eisman to elapse before notifying the defendant of any claim asserted against it, the plaintiff is now estopped from claiming or asserting any claim against this defendant for any of the benefits arising out of the membership of Joseph M. Smith in the defendant society or of any benefit certificate issued to him which had been delivered to the defendant and canceled and in defendant's hands, or for any claim whatsoever against the defendant."
Defendant's fifth, sixth and seventh defenses are based on the statute of limitations.
Plaintiff filed a verified reply in which she denied that insured endorsed thereon a request that said certificate be canceled and that a new certificate be issued in lieu thereof, in the amount of $3000, payable to her sister; denied that the beneficiaries in the certificate sued upon had been changed by the insured; denied that plaintiff executed the alleged release pleaded in defendant's answer, and alleged that the purported release was wholly without consideration and concluded with denying each and every allegation contained in defendant's answer.
At the trial plaintiff offered in evidence the file number of the original petition sued on showing that the suit was filed on October 30, 1935. She then rested her case "under the pleadings." Defendant then offered a peremptory instruction, which was refused. Thereupon, defendant introduced evidence based upon its affirmative defenses, and at the close of the evidence again offered a peremptory instruction, which was likewise refused. Plaintiff also offered a peremptory instruction.
The evidence shows that plaintiff's father became a member of the society, through its local camp located at Blairstown, on January 11, 1899, at which time he took out a benefit certificate in the sum of $1000; that later he increased said certificate to $3000; that all assessments levied against this certificate were paid and he remained a member of that camp, although, during all of the times that the matters material to the issues in this case transpired, he and his daughters lived in Kansas City; that insured changed the beneficiaries in his certificate several times prior to August 20, 1923, when he made application to have plaintiff and her sister made beneficiaries in the sum of $1500 each; that defendant issued a certificate in accordance with this application; that shortly thereafter insured handed the certificate to plaintiff, who, in turn, handed it to her sister to be kept by the latter; that when the certificate was delivered over to plaintiff and her sister by their father he told them that, since they were to benefit by it, it was no more than right that they should pay the assessments; that thereafter the certificate remained in the possession of the sister, who paid the assessments to the Camp Clerk at Blairstown, plaintiff furnishing one-half the amount thereof.
In support of its defenses defendant introduced in evidence the deposition of one J. G. Ray, its chief administrative officer, who gave a history of the insurance with the changes in the amount thereof and the persons designated as beneficiaries. He testified that the benefit certificate sued on was surrendered with a request endorsed on the back thereof for a change in the beneciaries in favor of plaintiff's sister as the sole beneficiary, said request being dated September 2, 1924; that a substitute certificate was issued to insured on September 13, 1924, payable to plaintiff's sister as the sole beneficiary in the amount of $3000. He also testified to the receipt of the proofs of death upon the substitute certificate, made by plaintiff's sister, and the payment of the full amount of the certificate, to wit, $3000, to the sister.
Defendant also introduced in evidence certain of its by-laws, the pertinent parts of which will hereinafter be discussed.
Plaintiff contends that the insured's signature on the request for the change in beneficiaries on the back of the certificate is a forgery.
The insured did not execute the surrender clause, if he did at all, in the presence of the camp clerk, but the defendant's evidence tends to show that he executed and acknowledged it before a notary public in Kansas City. The notary so testified, although his testimony is not very satisfactory on this point.
The testimony of the Camp clerk was not available because of a paralytic stroke suffered by him sometime before the trial. However, his daughter, who had kept the camp books for him for a number of years, testified, on behalf of the defendant, that the last change in the beneficiaries, or the one occurring on September, 13, 1924, followed the usual course according to the books, the certificate with the surrender clause, purporting to have been executed by the insured and acknowledged before a notary public, having been sent to the camp clerk at Blairstown.
A few days after the death of the insured, plaintiff's sister submitted proofs of death, duly executed, accompanied by the certificate dated September 13, 1924. These death proofs contained, among other things, an affidavit of the claimant, plaintiff's sister, claiming the full $3000...
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