Galvin v. Knights of Father Mathew

• Decision Date: 17 February 1913
• Parties: KATE GALVIN, Respondent, v. KNIGHTS OF FATHER MATHEW (a corporation) Appellant
• Court: Kansas Court of Appeals

155 S.W. 45

169 Mo.App. 496

KATE GALVIN, Respondent, v. KNIGHTS OF FATHER MATHEW (a corporation) Appellant

Court of Appeals of Missouri, Kansas City

February 17, 1913

Appeal from Jackson Circuit Court.--Hon. Jos. A. Guthrie, Judge.

AFFIRMED.

Judgment affirmed.

Frank P. Walsh, James P. Aylward and I. M. Lee for appellant.

(1) (a) It was not within the power of the local council, its recorder or any other officer of the organization to waive or dispense with any of the requirements of the appellant's order which related to the very substance of the contract. Lavin v. Grand Lodge, 104 Mo.App. 18; Boyce v Royal Circle, 99 Mo.App. 355; Borgraefe v. Knights of Honor, 22 Mo.App. 141; Harvey v. Grand Lodge, 50 Mo.App. 477; McCoy v. Insurance Company, 152 Mass. 272; Knights of Honor v Oeters, 95 Va. 615. (b) The testimony was insufficient to constitute a waiver of the by-laws. Burke v. Grand Lodge, 136 Mo.App. 457; Stiefel v. Life Ins Assn., 55 Mo.App. 233. (c) Waiver is an affirmative defense and under the law it is necessary to plead waiver when it is relied upon as basis of recovery. Nivert v. Railroad, 232 Mo. 639. (2) The court erred in admitting the testimony of the plaintiff as to the conversation with the recorder of the subordinate council which respondent contends constitutes a waiver of by-laws for the reason that the recorder of the subordinate council was dead and plaintiff was not a competent witness as to any admission, declaration or agreement he may have made. Sec. 6354, R. S. 1909; Williams v. Edwards, 94 Mo. 451; Darks v. Grocery Co., 146 Mo.App. 254; Real Estate Co. v. Building Co., 196 Mo. 370. (3) (a) Plaintiff's instruction 2 is erroneous and should not have been given for the reason that the subordinate council nor its officers had any power to abrogate or waive the by-laws. Borgraefe v. Knights of Honor, 26 Mo.App. 141; Charwick v. Order of Triple Alliance, 56 Mo.App. 463; Harvey v. A. O. U. W., 50 Mo.App. 477. (b) The instruction was further erroneous because there was no evidence upon which to base it.

G. W. Duvall, Fyke & Snider and E. W. Shannon for respondent.

The knowledge of McGuire was defendant's knowledge and the acts of McGuire were the acts of defendant, for it is admitted he was defendant's employee, its treasurer at the local branch and not shown anywhere in the record his authority was in any respect restricted. And it being his duty to collect assessments made by defendant against Galvin with knowledge of Galvin's habits, he, of course, knew defendant's customs and said for defendant, by continuing to make collections, knowing Galvin's habits, such practices were not objected to. Defendant is now estopped from making objections thereto. Advertising Co. v. Wanamaker, 115 Mo.App. 270; Gruwell v. K. L. of S., 126 Mo.App. 496; McMahan v. Maccabees, 151 Mo. 522; Shultice v. Modern W. of B., 120 P. 531. Waiver though an affirmative defense is not required to be pleaded in insurance cases. Such has been the rule in this State for many years and the authorities therein are numerous. In other cases the rule is different. Nickell v. Ins. Co., 144 Mo. 432.

OPINION

JOHNSON, J.

--This is an action on a death benefit certificate issued by a fraternal beneficiary society incorporated under the laws of this State. The allegations of the petition relating to the character of the contract of insurance end with the statement that defendant is a life insurance company and that on February 26, 1903, it issued to James J. Galvin a policy or certificate of insurance "by which it promised to pay Kate Galvin, plaintiff herein, the sum of $ 1000 upon the death of the said James J. Galvin." The answer alleges, in substance, that defendant is a fraternal beneficiary society, that it issued the certificate as such, and that the rights of the member and of plaintiff, his beneficiary, had been forfeited before his death by his violation of a certain rule of the society which prohibits its members from using intoxicants. Plaintiff filed a reply in the nature of a general denial. The cause was tried on the issues thus raised and verdict and judgment were rendered for plaintiff in accordance with the prayer of the petition. Defendant appealed.

The facts of the case are as follows: The defendant society was organized and is carried on for the sole benefit of its members and not for profit. It has a lodge system with ritualistic form of work and representative form of government. The highest body in the government is the supreme council, located in the city of St. Louis and composed of its officers and the representatives of the various subordinate councils. Among the officers of the supreme council are three trustees who are the custodians of the property of the supreme council and have certain prescribed duties relating to the conduct of the affairs of the order. The expressed objects of the society are:

"First, to unite fraternally, practical male Catholics, and to give all possible moral and material aid in its power to its members, and those depending on them, by holding moral, instructive and scientific lectures, by giving musical and literary entertainments, by assisting its members to obtain employment and by encouraging them in the pursuit of their profession, trade or occupation, and to provide means, from the proceeds of assessments upon its members wherewith to assist its sick and disabled members or for the relief and aid of families, widows and orphans, or other beneficiaries of its deceased members or both, as may be hereafter enacted. Second, to encourage all persons, by advice and example, to abstain from all intoxicating drinks and to cement the bonds of charity and union that should exist among all Catholics."

One of the by-laws requires each member to take the following pledge: "I promise, with Divine assistance, to abstain from all intoxicating drink, including cider, malt and fruit liquors, and to discountenance by advice and example, intemperance in others; and I do further pledge myself to faithfully obey and support the constitution, laws, by-laws, rules and regulations of this order, and labor to the best of my ability to advance its objects and to promote the welfare, spiritual and temporal, of my fellow members."

Another by-law deals with violations of this pledge in the following manner:

"Sec. 80. Any member violating the pledge shall be, by the very act, suspended, and when proved guilty, shall be expelled; the expulsion to date and take effect from proved date of violation of pledge.

"Sec. 81. The suspension shall work deprivation of all rights and claims of membership pending trial.

"Sec. 82. Any member cognizant of such violation, and failing to report the same, shall be removed, suspended or expelled, at the discretion of the council."

Other by-laws provide that a charge against a member for a violation of this pledge shall be made to the subordinate council (local lodge) of which he is a member and there tried. A member tried and found guilty is given a right to appeal to the supreme council. Further it is provided that a member found guilty may be reinstated to membership by his subordinate council on certain specified conditions that do not appear to be very onerous.

James J. Galvin became a member of a subordinate council in Kansas City in February, 1903. In his written application for membership and for a beneficiary certificate he agreed to "conform in all respects to the laws, rules and usages of the order now in force or which may hereafter be adopted," and that "my violation of total abstinence pledge . . . shall forfeit the rights of myself and family or dependents to all benefits and privileges therein."

And in the certificate issued to him the obligation of defendant to pay the death benefit was made dependent on the condition "that the statements contained in his application for membership and medical examination are true and that he complies in the future with the laws and regulations of said order."

The following questions and answers appear in the application: "Do you use morphine or opium in any form? No. Tobacco? Yes. Alcohol or other stimulants? Yes. If so, to what extent? Moderate. What has been your habit in respect to either through life? Drink occasionally."

Galvin died in May, 1910. He had continued his membership in the order, had not been charged with a violation of his pledge and had paid all dues and assessments. He was in the plumbing business in Kansas City and usually paid his dues and assessments at his office to the treasurer of the subordinate council who called there to collect them. Plaintiff was the wife of Galvin and worked in the office as book-keeper. Sometimes she made the payments to the treasurer and she states that he (the treasurer) "dropped in our office nearly every day. He would be going down town to his work and he would call in." Over the objection of defendant she was permitted to testify that about a year prior to Galvin's death the treasurer asked her if he was not drinking. She replied in the affirmative and said she wanted him to drop the insurance. The treasurer said, "No. You keep up the insurance. There will be a time when your husband will quit drinking."

One of the grounds of defendant's objection to this testimony was the alleged disqualification of plaintiff on account of the death of the treasurer prior to the trial. Witnesses were introduced by defendant from whose testimony it appears that Galvin, while not an habitual drunkard, continued to his death in the use of intoxicants. He was a daily visitor of dramshops, kept intoxicating liquors at home and frequently appeared to be more or less intoxicated. In her testimony plaintiff admitted that he had not kept his pledge and the evidence...