Gooden v. Modern Woodmen of America

• Decision Date: 06 November 1916
• Parties: EMILY GOODEN, Respondent, v. MODERN WOODMEN OF AMERICA, Appellant
• Court: Kansas Court of Appeals

189 S.W. 394

194 Mo.App. 666

EMILY GOODEN, Respondent, v. MODERN WOODMEN OF AMERICA, Appellant

Court of Appeals of Missouri, Kansas City

November 6, 1916

Appeal from Adair Circuit Court.--Hon. C. D. Stewart, Judge.

AFFIRMED.

Judgment affirmed.

Truman Plantz, F. M. McDavid and W. C. Woodson for appellant.

Weatherby & Frank and Campbell & Ellison for respondent.

OPINION

TRIMBLE, J.

In 1898 the defendant issued to William Gooden a benefit certificate of insurance for $ 1000 payable at his death, if in good standing, to his mother Emily Gooden. He died April 16, 1914. Defendant refused to pay and plaintiff brought this suit. She recovered judgment in the trial court.

The defense is, first, that Gooden was suspended for nonpayment of assessments for the months of January, February and March 1914, and non-payment of dues payable March 31, 1914; second that Gooden had abandoned the policy as evidenced by a letter which defendant claims Gooden wrote to it in December, 1913.

The existence of the benefit certificate and the membership of Gooden (barring the alleged suspension and abandonment), having been admitted, the plaintiff proved his death and that she was the beneficiary, and rested. The defendant then undertook the burden of proving the suspension and the abandonment. At the conclusion of the evidence, defendant asked a peremptory instruction directing the jury to return a verdict for it, which was refused. All other instructions asked by defendant were given and there is no objection to the one instruction given for plaintiff; nor is any point made on the admission or exclusion of evidence. Consequently the refusal of the peremptory instruction to find for defendant is the only matter of which it complains.

Of course, before the trial court can be convicted of error in this regard the record must show that either a suspension or an abandonment was established so conclusively as to take away from the jury any right to make a contrary finding. The admission that defendant had issued the benefit certificate to Gooden and that he was a member of the Order, coupled with plaintiff's proof that he was dead and that she was the beneficiary, made out a prima facie case for plaintiff. [Bange v. Supreme Council Legion of Honor, 179 Mo.App. 21, 161 S.W. 652.] When that is done, the burden is on the defendant to establish an affirmative defense to the satisfaction of the jury. And even though the evidence in support of such defense is uncontradicted, still the issue must be submitted to the jury in order that they may determine the credibility of that evidence. The court in such case cannot direct a verdict. [Winn v. Modern Woodmen, 157 Mo.App. 1, 137 S.W. 292; Troll v. Protected Home Circle, 161 Mo.App. 719, 141 S.W. 916; Printz v. Miller, 233 Mo. 47, l. c. 49; Milliken v. Thyson Com. Co., 202 Mo. 637, l. c. 655; Hunter v. Wethington, 205 Mo. 284, l. c. 293; Mowry v. Norman, 204 Mo. 173, l. c. 191; Wolff, Admx., v. Campbell, 110 Mo. 114, 19 S.W. 622; Keily v. Knights of Father Matthew, 179 Mo.App. 608, 162 S.W. 682.]

The above statement of the rule presupposes that the evidence is of such character as to present a question of credibility for the jury to pass upon. If plaintiff admits that defendant's evidence is true, or if the evidence is such that plaintiff is conclusively bound by it, then there is no question for the jury but only one of law for the court. A careful examination and statement of defendant's evidence and its character is, therefore, necessary in order to determine whether the case comes under the general rule requiring the submission of the issues to the jury or whether it is within one of the exceptions to the rule.

The principal witnesses for the defendant were Connor, the local camp clerk, and McNamara, the Head Clerk, or Secretary, at Rock Island, Illinois, who was assistant Head Clerk at the time the matters testified about transpired. By the clear and explicit terms of the insurance contract, a failure to pay any assessment on or before the last day of the month for which it was levied, or a failure to pay dues by the time required therefor, ipso facto, worked a suspension of the member and rendered the policy null and void. So that if it were established that deceased had failed to pay the assessment for either January, February or March, 1914, or to pay the dues payable on or before March 31, 1914, the certificate was void and plaintiff must fail.

To prove this non-payment of assessments and dues, the defendant introduced the "pass report" of the local camp sent to the office of the Head Clerk in February, 1914. This pass report was signed by the presiding officer and clerk of the local camp, and showed the name of William Gooden as having failed to pay the assessment for January, 1914, known as assessment 294, and as being suspended for that reason. The pass report of the local camp for assessment 295, levied for February, 1914, was next introduced showing no payment by William Gooden of said assessment nor did his name appear among those reinstated. No reference whatever is made to him therein. Likewise pass report of the local camp for the month of March, 1914, was introduced showing no payment of assessment for that month. These pass reports were identified by McNamara, the Head Clerk, as having been received through the mail from the local camp in the regular course of business. No objection was made to the introduction of these pass reports.

The defendant also introduced as exhibit 6, a book, identified by Connor as the "Ledger Account" of the local camp, with especial reference to pages 78 and 79, showing William Gooden's account with the local camp wherein he had paid twenty-four assessments of 50 cents each, being assessment No. 270 levied January, 1912, to and including assessment No. 293 levied December, 1913, but no payment of assessment after that time or after assessment No. 293. Connor testified, "that is the last assessment reported there." He also testified that the last payment of dues by Gooden were those payable on or before December 31, 1913. McNamara, the Head Clerk, testified that no assessments on account of William Gooden were received since December, 1913.

The Head Clerk further identified Exhibit J, which he termed was a "permanent record of his office" which record stated that a notice of suspension was mailed to William Gooden February 28, 1914. McNamara then testified that "under the rules of the office" a letter accompanied the notice of suspension and offered copies of two circular letters from the Head Office to William Gooden urging him to reinstate himself by payment of his assessments and dues, if in good health. The copies of these circulars were not dated, but McNamara testified that the original of the first was sent out under date of February 28, 1914, and the second under date of March 29, 1914. He then produced what purported to be a letter signed by William Gooden dated April 2, 1914, which, among other things, said: "I have dropped the Woodmen voluntarily with the advice of my beneficiary. I gave the Camp Clerk notice to that effect in January." The letter, after saying: "It is useless for me to go into detail and give my reasons why," nevertheless proceeded to state several matters as a reason for his action and closed by saying he admitted their success "by dropping my policy in the Woodman. Very sincerely yours. Wm. Gooden Camp 2147."

Under the terms of the insurance contract, suspension for non-payment, rendering the policy void, was not effected or waived by giving or failing to give notice. The offering in evidence of the alleged notices and of the letter purporting to be from insured was for the double purpose of showing that Gooden impliedly admitted non-payment and that he had abandoned the policy, the notices being shown in evidence merely as a means of identifying the letter as having been written by insured in answer to them. If there could be no question as to the authenticity of this letter and as to its having been received in answer to notices sent to Gooden it would seem that defendant had conclusively established its defense, and that there was nothing for the jury to decide. For if the letter is genuine it shows a clear and unequivocal abandonment of the policy or certificate. But McNamara admitted on cross-examination that he knew nothing personally about any notices having been sent to Gooden or of any letter having been received from him. All he knew about notices having been sent was based on the custom of the office and its mode of doing business. The knowledge he had was obtained from the books in the office. No evidence was given of any letters having been properly directed and stamped or mailed to Gooden, and none that any letter from him was received through the mails. All that the witness knew of the letter purporting to be from Gooden was that it was in the files of defendant's office, he never having seen it until after this controversy arose. No evidence was offered to prove the signature to the letter as being Gooden's. The letter says that the local camp clerk had been notified in January yet no question was asked of the clerk to corroborate this. In such state of the record it cannot be maintained that the authenticity of the letter was established, and the abandonment proved, so conclusively as to overcome, as a matter of law, plaintiff's prima-facie case. It was a question for the jury to say whether defendant ever received a letter from Gooden and whether the letter submitted as his was genuine. It is said that no objection was made to the introduction of the letter, but this was not an admission of its genuineness. Defendant had offered evidence tending to show that letters had been sent to Gooden...