Hammerstein v. Parsons

• Decision Date: 28 February 1888
• Citation: 29 Mo.App. 509
• Parties: EMMA HAMMERSTEIN et al., Appellants, v. TIMOTHY T. PARSONS et al., Respondents.
• Court: Missouri Court of Appeals

29 Mo.App. 509

EMMA HAMMERSTEIN et al., Appellants, v. TIMOTHY T. PARSONS et al., Respondents.

Court of Appeals of Missouri, St. Louis.

February 28, 1888

APPEAL from the St. Louis Circuit Court, HON. DANIEL DILLON, Judge.

Affirmed.

A. A PAXSON and JOS. S. LAURIE, for the appellants: In Ballou v. Gile, 50 Wis. 614, the court, in denying the right of an administrator to a similar fund, says of mutual benefit societies, " the court should construe its rules and regulations liberally to effect its benevolent purposes, and should not construe them so as to defeat that purpose, if their language admits of any other reasonable construction." Finn v. Lewis, 81 Mo. 259. In the above case the assured was a member of the Knights of Honor, the object of which, as declared by the charter, was " to establish a widows' and orphans' benefit fund." Upon his death, in an action by his widow and her daughter, claiming the stipulated sum jointly, their right to the same as against the administrator, was adjudged by the court, and although, as appears by the record, said daughter was twenty-two years of age, it was not disputed that she was an " orphan" within the sense of the charter. In the construction of charities endowed for philanthropic purposes, the courts have limited the benefits to minors, but even in such cases, the term is not recognized as having a technical signification, nor is the meaning uniform; a " fatherless child" having been pronounced an orphan within the meaning of Stephen Girard's bequest. Souhan v. City of Philadelphia, 33 Pa.St. 9. Only such facts as are constitutive of the cause of action in the sense of the code, must be alleged in the petition. Pier v. Heinrichoffen, 52 Mo. 333. The certificate showed that deceased, upon initiation, had paid and was credited with one assessment in advance; this, in connection with the other evidence, made a prima-facie case, and brought appellants within the rule that a state of facts once shown to exist will be presumed to continue until the contrary be shown. Cargile v. Wood, 63 Mo. 501; Supreme Lodge v. Johnson, 78 Ind. 110; Ins. Co. v Eggleston, 96 U.S. 572; Horwitz v. Ins. Co., 40 Mo. 557; Thompson v. Ins. Co., 52 Mo. 469; Pelkington v. Ins. Co., 55 Mo. 172; Steel v Ins. Co., 3 Mo.App. 207; Faulkner v. Faulkner, 73 Mo. 327; Bank v. Hatch, 78 Mo. 13; Schultz v. Ins. Co., 57 Mo. 331; Russell v. Ins. Co., 55 Mo. 585.

KLEIN & FISSE, for the respondents: Where the pleading alleges compliance with a condition precedent, evidence will not be admitted to show that the condition was waived. Pier v. Heinrichoffen, 52 Mo. 333; Kiskaddon v. Jones, 63 Mo. 190; State ex rel. v. Martin, 77 Mo. 676; Bank v. Hatch, 78 Mo. 13; Nicoll v. Larkin, 79 Mo. 272. The benefits provided to be paid in certain contingencies to the children of a deceased member are limited to his orphan children, which term includes only minor children. Plaintiffs not being minors are, therefore, not entitled to recover the benefits. Even if the definition of " orphan children" be extended to include persons like the plaintiffs, not minors, still the benefits are not payable to them directly, but only to the lodge to which their father belonged at the time of his death, to be held by such lodge for their equal benefit. Inasmuch as the plaintiffs are not orphans, i. e., minors, they have no right of action at all, but the case is one where the benefits are payable to the executor or administrator of the deceased, and any right of action belongs solely to such legal representative. Every definition of the word orphan limits its application to minor children who have lost by death one or both their parents. A fatherless child.--Jacob. A fatherless child or minor, or one deprived of the father and mother.--Wharton. A minor, or infant, who has lost both of his or her parents. Sometimes the term is applied to such a person who has lost only one of his or her parents. " " " " " Orphan" may mean either a minor, who has lost both parents, or one who has lost only one. Heiss v. Murphy, 40 Wis. 276, 290; 3 Mer. Ch. 48; 2 Sim. & S. Ch. 93; 14 Hazzard (Pa. Reg) 188, 199; see, also, Hof. 247. Rapalje & Lawrence Law Dictionary says: " A fatherless child, or minor, or one deprived of both father and mother."

OPINION

ROMBAUER J.

The plaintiffs state in their petition that they, and certain other parties therein named, were, at the date of the death of Gustave Hammerstein, his only surviving children, and that said Gustave Hammerstein left no widow. They further state that, partly in their own right and partly by assignment, they represent all his surviving children. They further aver that said Hammerstein died April 12, 1886, being at the time of his death a member of class A, of the Odd Fellows Mutual Aid Association of Missouri, and being a member in good standing in a lodge of the Independent Order of Odd Fellows of the state, to-wit, Washington Lodge 24, and that he was at said date entitled to all the rights and benefits of said class, and had to his credit on its books one assessment in advance, as required by the laws of said association.

The plaintiffs further state that, upon the death of a member, who, at the time of his death, was entitled to all the rights and benefits of the association, and who had to his credit on its books one assessment in advance, should there be no widow, his orphan child or children, in equal shares, are entitled to receive from the benefit fund of the class of which the decedent was a member, one thousand dollars if there be one thousand members of that class, sixty days after satisfactory proof has been made to the board of directors of the death of such member.

The petition also states that, in the event above stated, upon satisfactory proof of such death being made, the board of directors of the association are required to direct the president and secretary to draw a draft upon the treasurer in favor of the person or persons entitled thereto for the proper amount; that there were more than one thousand persons in class A at said time; that the association is unincorporated, and that the defendants are the president, treasurer, and directors thereof, and all members of class A; that although satisfactory proof of the death of said Gustave Hammerstein was made, and although more than sixty days had elapsed since the required proofs of death have been furnished, the defendants have failed to order such draft, or to draw it in favor of plaintiffs, but have converted the one thousand dollars, to which plaintiffs are thus entitled, to other uses of the association.

The defendants filed an answer, which, after generally denying the allegations of the petition, sets up, among other special defences, the following: (1) That the plaintiffs were not entitled to recover because they were not the orphan children of Hammerstein, but that plaintiffs, as well as those children of Hammerstein whose rights they represented by assignment, were all, at the time of their father's death, beyond the age of legal majority, and had not been designated as beneficiaries under the sixteenth section of the rules governing the association. (2) That, even if the benefit was payable to any one, yet, under the rules of the association, as the deceased left no widow or orphan children and had designated no beneficiary, the benefits, if any, were payable only to his administrator or executor. (3) That, even if the benefit was payable to any one, and even if the plaintiffs and their assignors would come within the designation of orphan children, yet, in that event, the benefits were payable to the lodge whereof the deceased was a member when he died, for the equal benefits of his orphan children, and plaintiffs were not entitled to maintain this action.

The answer was denied by reply, but the evidence adduced by the plaintiffs concedes that the plaintiffs, as well as their assignors, children of said Hammerstein, were all of age at the date of his decease.

The case was tried upon the issues thus framed. At the close of the plaintiffs' evidence the court instructed the...