Gill v. Sovereign Camp of Woodmen of World
| Decision Date | 14 January 1922 |
| Parties | ABBIE GILL, Respondent, v. SOVEREIGN CAMP OF THE WOODMEN OF THE WORLD, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Dunklin County.--Hon. W. S. C. Walker Judge.
AFFIRMED.
Verdict affirmed.
N. C Hawkins for appellant.
(1) (a) It was admitted, and it was plaintiff's theory undenied that, the deceased (1) habitually used opiates, and (2) had come to his death by accident but by his own hand or act. Such being the case the certificate was forfeited by virtue of provision 4 on the back of the certificate and the fourth division of section sixty of the Constitution and Laws of the order. Castens v. Knights & Ladies of Honor, 190 Mo.App. 57, l. c. 66 and authorities there cited; Stephens v. Ins. Co., 190 Mo.App. 673, 678-79; Gilmore v. M. W. A., 186 Mo.App. 455; Lbr. Co. v. Railway, 243 Mo. 245-46; Mathews v. M. W., 236 Mo. Sup. 326. (b) Plaintiff's alleged cause of action was barred by virtue of section 115 (c) of the Constitution and laws of the order, and provision 5 on the back of the certificate. Dolan v. Royal Neighbors, 123 Mo.App. 147, 154, and authorities there cited. (c) The circuit court of Dunklin county had no jurisdiction over the subject-matter of the action or the person of the defendant. Roberts v. Assur. Co., 212 S.W. 390. (2) This instruction purported to cover the entire case and directed a verdict for plaintiff, and yet erroneously ignored defendant's defenses, affirmatively pleaded and sustained by substantial if not conclusive evidence and admissions. Ewen v. Hart, 183 Mo.App. 107; Underwood v. Railway, 190 Mo.App. 419; Perry v. Van Matre, 176 Mo.App. 110; Beggs v. Shelton, 173 Mo.App. 127; Enloe v. Car Co., 240 Mo. 443.
Ira M. Morris and John T. McKay for respondent.
(1) The court has jurisdiction to maintain and hear this cause, because: (a) Appellant is a resident of every county in Missouri. Sec. 6310, R. S. 1919; Gold Issue Min. & Milling Co. v. Fire Insurance Co., 267 Mo. 524; State ex rel. Grim, 239 Mo. 135; Penn. Fire Ins. Co. v. Gold Issue Min. & Milling Co., 243 U.S. 9361, Law Ed. 610. (b) The action is transitory and the circuit court of Dunklin county is a court of general jurisdiction, and even if the court did not obtain jursdiction by the filing of the suit and serving of summons, appellant entered its appearance and waived its right to object to the jurisdiction of this court when it appeared in court and agreed to a continuance; when it filed a motion after the return term to strike out respondent's amended petition; when it appeared by agreement and took part in the taking of a deposition on behalf of respondent after the cause had been continued by agreement from the January term, the return term of said cause, to the July term, which deposition went to the merits of the cause and not to the jurisdiction of the court. Roberts v. American Nat. Assur. Co., 212 S.W. 390; Silvey v. Silvey, 192 Mo.App. 184; Stoneware Co. v. Springs Co., 172 Mo.App. 696; Morrick v. Morrick, 196 S.W. 1029; Spurl v. Burlinggame, 61 Mo.App. 75; Bankers Life Assn. v. Shelton, 84 Mo.App. 634; Montgomery v. Ins. Co., 80 Mo.App. 500; Baisley v. Baisley, 113 Mo. 544; Cook v. Globe Printing Co., 227 Mo. 521; Julian v. Kansas City Star Co., 209 Mo. 35. (c) There is no evidence in the record that defendant did not have an agent in Dunklin county, Missouri, and, therefore, was not properly sued in said county. State ex rel. v. Shields, 237 Mo. 329; State ex rel. v. Mills, 231 Mo. 493; State ex rel. v. Gantt, 274 Mo. 510. (2) The court did not err in giving plaintiff's instruction, because it fairly stated the law as applied to the facts set forth in the evidence, which was all she was required to do in as much as defendant offered and the court gave instructions sufficiently favorable to it upon all points of defense made by the pleadings. The instructions should be taken as a whole and a single instruction need not cover the whole case. Shanahan v. St. Louis Transit Co., 109 Mo.App. 228; Evers v. Wiggins Ferry Co., 127 Mo.App. 236; O'Hara v. Lamb Con. Co., 200 Mo.App. 292; Quinn v. Van Raalte, 276 Mo. 71; Dorsey v. Railway, 175 Mo.App. 150; Wilson v. Railway, 160 Mo.App. 649. (a) The court did not err in refusing appellant's instruction No. 4 because it did not correctly define the law: 1. It would make no difference whether appellant was a resident or non-resident. 2. There was no evidence upon which to base said instruction, no proof offered that there was not an agent in Dunklin County, Missouri. State ex rel. v. Gantt, 274 Mo. 510; State ex rel. v. Shields, 237 Mo. 329; State ex rel. v. Mills, 231 Mo. 493. 3. The jurisdiction is one of fact for the determination of the court and not the jury. State ex rel. v. Shields, 237 Mo. 329; State ex rel. v. Mills, 231 Mo. 493. (3) The court did not err in overruling appellant's motion for a new trial because: 1. The court had jurisdiction of both the cause of action and the parties. 2. The action is transitory and appellant submitted itself to the jurisdiction of this court. 3. Jurisdiction is presumed unless the contrary appears by proof. 4. The court did not err in giving and refusing instructions. 5. The contract sued on in this case is a Missouri contract as shown by the evidence, entered into in Malden, Missouri, in 1896, and is therefore to be construed according to the Missouri law. Cravens v. Ins. Co., 148 Mo. 600; Harton v. Ins. Co., 151 Mo. 621; Pietri v. Seguenot, 96 Mo.App. 265; Whittaker v. Insurance Co., 133 Mo.App. 664. 6. Our statute provides all parts of any contract or agreement hereafter made or entered into which either directly or indirectly limit or tend to limit the time in which any suit or action may be instituted shall be null and void. Sec. 2166, R. S. 1919; Karnes v. Ins. Co., 144 Mo. 413; Richardson v. Railway Co., 149 Mo. 311; Roberts v. Woodmen, 133 Mo.App. 207; Dolan v. Royal Neighbors, 123 Mo.App. 147; Summers v. Mut. Aid Assn., 84 Mo.App. 611. 7. In an action on a benefit certificate issued by a fraternal beneficiary association, as this, the plaintiff makes a prima facie case by introducing the certificate and showing the death of insured and that all assessments and dues were paid at the time, and the burden then rests upon the defendant, pleading the suicide or habitual use of opiates as a defense, to establish such defense. Castens v. Knights and Ladies of Honor, 190 Mo.App. 57; Reynolds v. Casualty Co., 274 Mo. 83; Bear, et al. v. Sovereign Camp, W. O. W., 230 S.W. 369. (4) When circumstantial evidence only is relied on, the defense fails unless the circumstances exclude with reasonable certainty any hypothesis of death by accident. Reynolds v. Casualty Co., 274 Mo. 83; Bear v. W. O. W., 230 S.W. 369. (a) The defense became a question of fact to be submitted to the jury and their verdict is binding if there is any evidence upon which to base it. Gannon v. Laclede Gas Light Co., 145 Mo. 502; Troll v. Home Circle, 161 Mo.App. 719; Castens v. Ins. Co., 190 Mo.App. 65; Kellar v. St. L. Butchers Supply Co., 229 S.W. 173. (b) The presumption of love of life is so great that to overcome this presumption there must be some fact offered that is inconsistent with any other theory than that the act complained of was done with suicidal intent and was not accidental.
--The plaintiff secured a judgment in the circuit court of Dunklin county against the defendant, which is a fraternal beneficiary association organized under the laws of Nebraska and licensed to transact business in the State of Missouri.
The recovery was based on a certificate which was issued on the life of Henry A. Gill by the local Camp at Malden, Dunklin county, Missouri, dated September 10, 1896. The plaintiff made a prima-facie case by showing the death of her husband, which was on July 1, 1918; that his dues were all fully paid up at that time and that she was the beneficiary. The amount of the insurance was $ 1000. The defendant association appeals from the judgment, assigning several grounds for a reversal, which we will take up in the order arranged in its brief.
First on the demurrer to the evidence. It is contended that the court should have sustained a demurrer offered by defendant at the close of the evidence, on the ground that the certificate provided that if the member habitually uses opiates, cocaine, chloral or other narcotics, or poison, the certificate shall be null and void. This contention is based on the ground that plaintiff herself admitted that her husband was addicted to the use of narcotics and hence there was no question to go to the jury and the court should have directed a verdict for the defendant. This contention is based on the following evidence in the case: After the death of plaintiff's husband, the family doctor, B. E. Garrison, of Wayne City, Ill., which was the residence of the deceased and plaintiff at the time of the death, wrote a letter addressed to the clerk of the Camp of defendant at Malden, Missouri, but sent it to the plaintiff. The plaintiff admitted that she received the letter and read it and then forwarded it on to the defendant's clerk. In that letter it is stated the husband of plaintiff died from an overdose of opium compound, and the letter further stated as a fact that he was a narcotic and was addicted to the use of opium. Conceding, for the disposition of this case, that when these statements were made in a letter which the plaintiff herself first received and read, and was by her delivered to the defendant, that such statements would be treated as her own statements and admissions, and in the absence of any contradictory evidence, or evidence tending to...
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