Gilmore v. Modern Brotherhood of America

• Decision Date: 12 December 1914
• Docket Number: No. 1416.,1416.
• Citation: 171 S.W. 629
• Parties: GILMORE v. MODERN BROTHERHOOD OF AMERICA.
• Court: Missouri Court of Appeals

171 S.W. 629

GILMORE v. MODERN BROTHERHOOD OF AMERICA.

No. 1416.

Springfield Court of Appeals. Missouri.

December 12, 1914.

1. INSURANCE (§ 819) — FRATERNAL SOCIETY — CERTIFIED COPY OF LICENSE AS EVIDENCE.

A prima facie showing by certified copy under Laws 1911, p. 292, providing (section 16) that a duly certified copy of its license shall be prima facie evidence that the licensee is a fraternal benefit society, is sufficient, in absence of contrary evidence, to bring it within the provisions of the law relating thereto.

2. INSURANCE (§ 694) — BENEFIT ASSOCIATION — REQUISITE OF MEMBERSHIP.

Initiation is a condition precedent to membership in an insurance benefit association.

3. INSURANCE (§ 818) — ACTION ON BENEFIT CERTIFICATE — EVIDENCE.

In an action on a benefit certificate, defended on the ground that it was delivered without the initiation required by defendant's by-laws as a condition precedent to membership, it was not error to refuse evidence of a contrary custom of the local lodge without an offer to show the number of certificates thus delivered, or that such a course of dealing was carried on so as to have necessarily been known to the Supreme Lodge, and that decedent knew they were thus delivered.

4. INSURANCE (§ 818) — ACTION ON BENEFIT CERTIFICATE — EVIDENCE.

By-laws authorized by Laws 1911, p. 292, § 22, prohibiting a waiver of a provision for initiation by subordinate officers, and requiring such a condition precedent to membership, were admissible.

5. INSURANCE (§ 825) — ACTION ON BENEFIT CERTIFICATE — QUESTION FOR JURY.

Evidence on the issue of decedent's initiation as a member held insufficient to go to the jury.

6. EVIDENCE (§ 584) — "PRIMA FACIE CASE."

A prima facie case is that which is received or continues until the contrary is shown, and is one which is, in absence of explanation or contradiction, an apparent case, sufficient in the eyes of the law to establish the fact, and,

if not rebutted, remains sufficient for that purpose.

7. EVIDENCE (§ 584) — "PRIMA FACIE EVIDENCE."

Prima facie evidence means evidence which is sufficient to establish the fact, unless rebutted; evidence which, standing alone and unexplained, would maintain the proposition and warrant the conclusion to support which it is introduced.

8. TRIAL (§ 169) — DIRECTION OF VERDICT.

It is as much the duty of a trial court to direct a verdict for defendant, when the undisputed facts show no liability to have been incurred, as it is to submit conflicting evidence to the jury.

9. INSURANCE (§ 817) — POSSESSION OF BENEFIT CERTIFICATE — PRESUMPTION AS TO REGULARITY.

In the absence of evidence, it is presumed that a certificate was regularly deposited in proper hands, but such presumption cannot be permitted to contradict plain uncontroverted facts as to how it got into the hands of the individual.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by Cordelia Gilmore against the Modern Brotherhood of America. From a judgment for defendant, plaintiff appeals. Affirmed.

Bradley & McKay, of Kennett, for appellant. Ely, Pankey & Ely, of Kennett, and Sparrow & Page, of Kansas City, for respondent.

FARRINGTON, J.

This is an action by the widow of David Gilmore on a beneficiary certificate for the sum of $1,000, in which her husband was the assured, and she was named the beneficiary. The certificate was issued on November 20, 1912, and was delivered by the secretary of the local lodge of the Modern Brotherhood of America at Cardwell, Mo., either on December 4 or December 14, 1912, at which time the proper amount was paid by the assured to the secretary of the local lodge. David Gilmore died on January 5, 1913, from the ravages of pneumonia. The Supreme Lodge declined to furnish blanks on which proof of his death could be made, and instructed the secretary of the local lodge to return to the widow the two assessments which Gilmore had paid him (one was paid on January 4th, the day before Gilmore died). She refused to accept them, and brought this suit. To defeat the action the Supreme Lodge alleged in its answer that deceased had never been initiated, adopted, or admitted into the society as a member thereof, having first alleged that it is, and was at all times mentioned in plaintiff's petition, a fraternal benefit society organized and incorporated under and by virtue of the laws of the state of Iowa; "that it is without capital stock, and was formed and organized, and is carried on solely for the mutual benefit of its members and their beneficiaries, and not for profit; that it has a lodge system, with ritualistic form of work and representative form of government, and makes provision for the payment of benefits in event of the death or disability of its members; that, as such fraternal benefit society, it has, and had at all times mentioned in plaintiff's petition, complied with all the laws of the state of Missouri relating to such societies, and at said times was engaged in transacting the business of such society in said state of Missouri by authority of, and in compliance with, the law of said state." The answer then proceeds to set forth provisions appearing in the application, the certificate, and the by-laws of the society concerning the necessity of initiation to constitute an applicant a member. The reply was a general denial, coupled with a plea that defendant by its acts and conduct had waived its right to rely on failure to initiate and a plea of estoppel. At the close of all the evidence the court directed a verdict for the society, and plaintiff appealed.

Appellant contends that respondent did not offer sufficient evidence to bring itself within the provisions of our law relating to fraternal beneficiary associations, citing Thompson v. Royal Neighbors, 154 Mo. App. loc. cit. 121, 133 S. W. 146. Since the decision in that case the law as to fraternal beneficiary associations has been changed. Laws 1911, pp. 284 to 301. Section 16 of the law as it now stands (Laws 1911, p. 290) provides: "A duly certified copy or duplicate of such license shall be prima facie evidence that the licensee is a fraternal benefit society within the meaning of this act" — the "license" referred to being one obtained by such associations from the superintendent of the insurance department of the state. This is the first time that provision has come before the appellate courts of this state since its enactment. Respondent complied with that law and at the trial introduced in evidence a certified copy of its license to do business in Missouri as such society. There was no attempt to overcome this prima facie showing; hence, it was sufficient. However, respondent went further, and introduced in evidence a certified copy of its articles of incorporation, showing that it was organized as "a fraternal beneficiary society for the sole benefit of its members, and not for profit"; that it has a "lodge system, with ritualistic form of work and representative form of government"; that provision is made "for the payment of benefits in case of death"; and that "the fund from which the payment of such benefits shall be made and the expense of said fraternity defrayed shall be derived from beneficiary calls, assessments, and dues collected from its members." See Westerman v. Supreme Lodge K. of P., 196 Mo. loc. cit. 701, 702, 94 S. W. 470, 5 L. R. A. (N. S.) 1114. Respondent also introduced in evidence the laws of Iowa under which it was organized.

Appellant contends that the...