Le Grand v. Security Benefit Ass'n

• Decision Date: 08 May 1922
• Docket Number: No. 3076.,3076.
• Citation: 210 Mo. App. 700,240 S.W. 852
• Parties: LE GRAHD v. SECURITY BENEFIT ASS'N.
• Court: Missouri Court of Appeals

240 S.W. 852

210 Mo. App. 700

LE GRAHD v. SECURITY BENEFIT ASS'N.

No. 3076.

Springfield Court of Appeals, Missouri.

May 8, 1922.

Appeal from circuit Court, Jasper County; J. D. Perkins, Judge.

Action by J. A. Le Grand, as administrator, against the Security Benefit Association. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank Gass, of Carterville, and S. W. Bates, of Webb City, for appellant.

Morrison Pritchett, of Webb City, and W. R. Robertson, of Joplin, for respondent.

BRADLEY, J.

This is a suit on a fraternal benefit certificate or policy of insurance. The cause was tried to a jury, and judgment went for plaintiff, and defendant appealed.

On June 24, 1919, Clarence D. Fast made application for membership and policy in the Knights and Ladies of Security. He was duly accepted, and a policy for $2,000, naming Emma G. Fast, his wife, as beneficiary, was issued. The Knights and Ladies of Security was taken over by defendant, and it became responsible for the old order's contracts. Fast died on October 9, 1919, in good standing. Proofs of death were duly made, and the claim rejected on January 12, 1920. Emma G. Fast, the beneficiary, died in November, 1920. Thereafter plaintiff was appointed administrator of the estate of Emma G. Fast, and filed this suit August 4, 1921.

The petition is in the usual form. The answer charged misrepresentations as to disease, health, and when treated by a physician, and a plea that, since suit was not filed within one year from the date of the death of the insured, recovery could not be had. Defendant abandoned all points except two. It is stated in defendant's brief thus:

"There are three questions raised by the defendant in this case. The first relates to the propriety of the plaintiff's first and only instruction; the second, the time of bringing the suit covered by instruction B offered by defendant, but refused by the court; the third, whether or not the deceased, Clarence D. Fast, consulted a physician within the meaning of the constitution, by-laws, application for membership, and certificate, and within five years previous to the filing of his application for membership."

Defendant does not again mention plaintiff's instruction, and makes no attempt to point out why,, wherein, or how the instruction is erroneous; hence we take it that it has abandoned that ground. The two remaining points are well stated by defendant, and we take them up in the order stated.

(1) Instruction B requested by defendant, and refused, is as follows:

"The court instructs the jury that it is agreed in this case that the deceased, Clarence D. Fast, died October 9, 1919; if you find and believe from the evidence that the beneficiary, Emma G. Fast, submitted proof of the death of the insured to the defendant company and her rights as such beneficiary, and the defendant company refused to allow such claim, and that this suit was not filed or instituted within one year thereafter, you will return a verdict for the defendant."

The policy contained this provision:

"No action in any court can or shall be maintained on this certificate until after the proofs of death, and claimant's right to benefits, as provided in the laws of the order have been filed with the national secretary, and passed upon by the national executive committee, nor unless brought within one year from the date of death of the member."

It was shown that the Knights and Ladies of Security was organized under the laws of the state of Kansas, and that the statute of limitations in Kansas on written contracts is five years. Defendant frankly concedes that our courts have held contrary to its contention on the one-year provision. Roberts v. Modern Woodmen, 133 Mo. App. 207, 113 S. W. 726. Section 2166, R. S. 1919 provides that:

"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."

This statute was the basis for the ruling on the third defense set up in Roberts v. Modern Woodmen, supra, as it is the basis for other rulings of like effect. Shearlock v. Mutual Life Ins. Co., 193 Mo. App. 430, 182 S. W. 89. But defendant urges that the ruling in Roberts v. Modern Woodmen was prior to the passage of the Fraternal Beneficiary Association Act in 1911. Laws 1911, pp. 284-301. Section 9 of that act, now section 6405, R. S. 1919, provides that every certificate issued shall provide that the certificate, charter, the constitution and laws, the application and medical examination, and all amendments, etc., shall constitute the agreement. Defendant's contention is that section 9 of the act of 1911, supra, in effect exempts fraternal insurance certificates from what is now section 2166. Section 2166 had been in force many years prior to 1911 (see Laws 1887, p. 99), and we are of the opinion that section 9 of the act of 1911 does not have the effect of exempting defendant from the effects of the act of 1887. Section 10273, R. S. 1919, prohibits, as we see it, any by-laws running counter to the laws of the state. Section 10273, R. S. 1919, was enacted in 1879 (section 980, R. S. 1879), and has been carried through all the revisions without change. If we hold that defendant, organized under the laws of a sister state, is by virtue of the act of 1911 exempt from the provisions of the act of 1887, then the effect would be that a fraternal beneficiary association organized under the laws of some other state would have advantage, in the respect under consideration, over an association of like nature organized under the laws of this state. " If the Legislature had so intended it is reasonable to assume that more definite intention would have been expressed than appears in the act of 1911.

The one-year provision in the policy sued on is taken from the constitution and...