Gilmore v. Modern Brotherhood of America

• Decision Date: 12 December 1914
• Citation: 171 S.W. 629,186 Mo.App. 445
• Parties: CORDELIA GILMORE, Appellant, v. MODERN BROTHERHOOD OF AMERICA, Respondent
• Court: Missouri Court of Appeals

171 S.W. 629

186 Mo.App. 445

CORDELIA GILMORE, Appellant, v. MODERN BROTHERHOOD OF AMERICA, Respondent

Court of Appeals of Missouri, Springfield

December 12, 1914

Appeal from Dunklin County Circuit Court.--Hon. W. S. C. Walker Judge.

Judgment affirmed.

Bradley & McKay for appellant.

(1) When appellant proved the death of David Gilmore, the denial of liability on the part of the respondent, and offered the certificate sued on, she established a prima-facie case which entitled her to a verdict. Mulroy v. Knights of Honor, 28 Mo.App. 463; Keily v. Knights of Father Matthew, 162 S.W. 682; Forse v. Knights of Honor, 41 Mo.App. 117; Chadwick v. Order Triple Alliance, 56 Mo.App. 474; McComas v. Life Ins Co., 56 Mo. 573; Rippstein v. Life Ins. Co., 57 Mo. 87; Cauveren v. Ancient Order of Pyramids, 98 Mo.App. 433. (2) The court committed error in permitting a copy of the purported by-laws to be offered in evidence (Rec Page 82) without proper authentication, and this cause ought to be reversed and remanded with directions to enter judgment for appellant. Thompson v. Royal Neighbors, 154 Mo.App. 121. (3) The court erred in not permitting plaintiff to prove that it had been the custom of the local lodge to not exact initiation, obligation and adoption into its order before delivering policies to its members as required by section 120 of the by-laws of said order and that such conduct had been permitted on the part of the local lodge to continue for such length of time as to have necessarily been known to the Supreme lodge which was competent on the question of whether or not the defendant by its acts was estopped to deny its liability under the policy sued on herein. Shartle v. M. B. A., 139 Mo.App. 433; Thompson v. Royal Neighbors, 154 Mo.App. 109. (4) Respondent's only defense was failure to initiate, adopt and obligate deceased on the part of the local lodge and in order to assert such defense it had to show by the burden of evidence that it comes within the provisions of the law governing fraternal beneficiary associations, which it wholly failed to do. Thompson v. Royal Neighbors, 154 Mo.App. 109. (5) This cause ought to have gone to the jury, if the court should hold that respondent by proper evidence brought itself within the provisions of law governing fraternal beneficiary associations, but if not then the court should have directed a verdict for the appellant. Keily v. Knights of Father Matthew, 162 S.W. 682; Thompson v. Royal Neighbors, 154 Mo. 109.

Ely, Pankey & Ely and Sparrow and Page for respondent.

(1) Respondent showed itself to be a fraternal benefit society, and that Gilmore had never been initiated. He never, therefore, became a member of the society. Without membership, there could be no contract of insurance with him. Hiatt v. Fraternal Home, 99 Mo.App. 105; Loyd v. M. W. A., 113 Mo.App. 19; Shartle v. M. B. A., 139 Mo.App. 433; Porter v. Loyal Americans of the Rep., 180 Mo.App. 538, 167 S.W. 578; Driscall v. M. B. A., 77 Neb. 282, 109 N.W. 158; Loudon v. M. B. A. (Minn.), 119 N.W. 425; Matkin v. Sup. Lodge, 82 Tex. 301, 18 S.W. 306; Harrison v. Sup. Council, 129 Ia. 303, 105 N.W. 580; Loyal Legion v. Richardson, 76 Neb. 562, 107 N.W. 795; Bacon on Benefit Societies, 3 Ed., Par. 273-A; Brittenham v. W. O. W., 167 S.W. 587. (2) The evidence was uncontroverted. No question as to the credibility of the witnesses was raised. It was, therefore, the duty of the court to declare the evidence of the testimony as a matter of law. Gee v. Drug Co., 105 Mo.App. 27, 34; Carter-Montgomerie v. Steel, 83 Mo.App. 211, at 215; Hendley v. Globe Refinery Co., 106 Mo.App. 20, at 27; Powell v. Railway Co., 76 Mo. 80, at 83. (3) The judgment is manifestly for the right party. This being true, it should be affirmed, regardless of any error, if any there was, committed by the trial court. Cass v. Bank of Harrisonville, 157 Mo. 133, at 137; Foster v. Railroad, 112 Mo.App. 67; Walker Bros. v. Railroad, 68 Mo.App. 465, at 483; State ex rel. v. Smith, 141 Mo. 1, at 9; Albert Grocery Co. v. Grossman, 100 Mo.App. 338; State ex rel. v. Jones, 131 Mo. 194.

FARRINGTON, J. Robertson, P. J., and Sturgis, J., concur.

OPINION

FARRINGTON, J.

This is an action by the widow of David Gilmore on a beneficiary certificate for the sum of $ 1000 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 4th or December 14th, 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. 109, 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. 670, 702, 94 S.W. 470.] Respondent also introduced in evidence the laws of Iowa under which it was organized.

Appellant contends that the judgment should be reversed and the cause remanded with directions to enter judgment for her because the court erred in admitting in evidence a copy of the purported by-laws of the society without proper authentication. It is unnecessary to discuss this question. Gilmore, in his application which became a part of his certificate, agreed as follows: "I waive for myself and beneficiary any all rights to any benefit under this application, or any benefit certificate issued thereon, until . . . I shall have been regularly adopted or initiated in accordance with the ritual of said society, . . . and said benefit certificate shall have been issued in pursuance of this application and delivered to me, after adoption or initiation, . . ." There is no contention that Gilmore was ever initiated and it is shown that he was never in the lodge room.

The authorities agree that initiation is a condition precedent to membership in such associations. [Porter v. Loyal Americans, 180 Mo.App. 538, 167 S.W. 578, and cases cited.]

Appellant contends that the court erred in not permitting her to prove that it had been the custom of the local lodge to not exact initiation and that such conduct had been continued on the part of the local lodge for such a length of time as to have necessarily been known to the Supreme Lodge and that such...