Hanheide v. Supreme Tribe of Ben Hur

• Decision Date: 30 July 1920
• Docket Number: No. 16045.,16045.
• Parties: HANHEIDE v. SUPREME TRIBE OF BEN HUR.
• Court: Missouri Court of Appeals

223 S.W. 684

HANHEIDE v. SUPREME TRIBE OF BEN HUR.

No. 16045.

St. Louis Court of Appeals. Missouri.

July 30, 1920.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Suit by Mary Hanheide against the Supreme Tribe of Ben Hur. From a judgment for plaintiff, defendant appeals. Affirmed.

C. E. Pope and H. F. Driemeyer, both of East St. Louis, Ill., for appellant.

Igoe & Carroll, of St. Louis, for respondent.

BARNES, C.

This suit was instituted to the October term, 1914, of the circuit court of the city of St. Louis, Mo. It is based upon beneficiary certificate No. 106912, issued September 5, 1903, by appellant, upon the life of Fritz Hanheide, for $1,100, designating his wife, respondent, Mary Hanheide, as beneficiary. Insured died by accident September 18, 1913. Appellant is a fraternal beneficiary association incorporated under the laws of Indiana, and licensed to do business in this state.

This case has been before the court nisi three times. The first trial was November 20, 1915, resulting in a verdict for respondent for $1,171. This verdict was set aside upon appellants' motion, on the ground that it was against the weight of the evidence. The case was retried on May 5, 1916, at which time the jury failed to agree, and a mistrial ordered. The third trial was on November 15, 1917, and a verdict for respondent in the sum of $1,353 was returned. After overruled motion for new trial, this appeal was perfected.

The petition is in the usual form. The answer pleads the contract as disclosed by the certificate, the laws, rules, and regulations of the association, the application for membership, and that the insured failed and declined to pay the monthly payments on the certificate after the month of November, 1912, by reason whereof the insured forfeited all rights of membership and benefits in all funds of appellant, thereafter stood suspended, and did not thereafter become reinstated, and said certificate became null and void. The reply denied generally all the allegations of the answer.

On behalf of respondent, there was introduced in evidence the beneficiary certificate and a letter under date of January 21, 1914, written the attorneys for respondent by the Supreme Scribe of appellant association, disclaiming liability under the beneficiary certificate, because the last payment on the certificate received at the office was November, 1912, and the death of insured occurred September, 1913. Respondent was then proffered as a witness, and testified that Mr. Brinker was the scribe of the local lodge (Germania Court, No. 51, of the Tribe of Ben Hur), which office he had held ever since 1903, and generally came to respondent's house to collect the money due appellant once or twice a year; that he came out on September 29, 1912. She was then interrogated and answered as follows:

"Q. State what passed between you and Mr. Brinker, the scribe, at that time. A. Mr. Brinker came out to the house —

"Mr. Pope (interrupting): object to that. I don't think any conversation between Brinker and her would be binding upon the defendant.

"The Court: If it is true that he was representing the benefit society what he said then would bind the defendant.

"Mr. Cullen: That was admitted by counsel in his statement.

"The Court: Objection overruled. (To which ruling of the court the defendant then and there at the time duly excepted.)

"Mr. Cullen (resuming examination): Q. Go ahead and tell us what passed between you and Mr. Brinker. A. He came out there on the 29th of September, and asked where my husband was, and I told him he wasn't in, and I asked him what he wanted, and he said he would like to collect the lodge money for the Tribe of Ben Hur, Germania Court. And I said, `He isn't here, but you can find him one block away from home,' and I showed him the way. Before I told him, he didn't need to come out and collect the money, but that he should give me the book and I would send the money; he didn't need to bother coming out.

"Q. What did he say to that? A. He didn't answer on that question.

"Q. What book do you refer to? A. The receipt book; Mr. Brinker always had the receipt book.

"Q. Who had possession of the receipt book then? A. Mr. Brinker.

"Q. Now, that talk. Did Mr. Brinker go away any place after you had that talk with him? A. He went down to find my husband, which was just one block away from home.

"Q. Did you go with him or not? A. No, sir; I didn't go with him.

"Q. Did you see your husband, after he left? A. In the evening. Mr. Brinker came out two or three weeks after that. I said, `Mr. Brinker, did you get the money for the lodge?' And he said, `Yes' And I said, `Well, if it wasn't paid, I would like to pay it.' I said to Mr. Brinker my husband told me I should ask him for the book, and take care of the book. He said that the lodge had been paid; that my husband had paid him $15, which paid him up for one year. This talk was about two or three weeks after he had been out before. He came out on the 29th of September, 1912. This paper marked Exhibit C is in my husband's (Fritz Hanheides) handwriting and that on the back is Mr. Brinker's.

"Q. At the time that Mr. Brinker was there, about two weeks after the first visit, did you at that time have sufficient money to pay these dues, if they had not been paid?

"Mr. Pope: I object to that as immaterial.

"The Court: Objection overruled. (To which ruling of the court the defendant then and there at the time duly excepted.)

"Witness: "I always had money to pay the lodge. I don't think I ever saw Mr. Brinker again after that time before my husband's death. My husband had been sick for two years before he died. He was laid up many times, two weeks at a time. I didn't see my husband's receipt book at all. Mr. Brinker never did show me the book, but just came and got the money."

The purport of respondent's testimony on cross-examination was that Brinker's statement was to the effect that her husband's dues and assessments were paid for a year in advance. She was recalled at the conclusion of testimony for the defense, and testified that her husband broke his leg the 1st of July, and was crippled in both feet, as the result of an accident from which he died; that he was in bed at home for some six weeks, namely, from the time of the accident until his death.

On behalf of appellant the testimony tended to show that insured had made admissions to several of the witnesses that he was not a member of appellant order. Adelia Kerls testified insured told her about three days before his death that he had been out of the order for quite a while. Mr. Evis testified insured told him about three months before his death that he did not belong to the order any more; and George Brinker testified that insured said that any one who paid assessments for him was likely to lose that he would not "belong" to any insurance any more.

George Brinker testified that he had been a member and the scribe of Germania Court of the Tribe of Ben Hur ever since its organization in 1901; that he was a friend of insured, who joined the defendant order in September, 1903; that insured was not a regular attendant of lodge meetings, and at times was a member hard to find; that insured was frequently broke when called upon for payment of dues and assessments, and that there was an understanding between insured and witness whereby the witness would advance insured's assessments and dues if insured did not pay his assessments and dues by the 25th of the month, it being the limit in which payment could be made without suspension. He further testified that insured became more careless about payments of dues and assessments as time went by, and that in order to locate insured he went to insured's residence early Sunday morning, September 29, 1912, to collect $17.10 that the witness had advanced in payment of dues and assessments for insured; that insured was not at home, but that respondent informed him that insured had not been home for some four weeks; that insured was sleeping in a vacant building a block from his residence; the building was undergoing some repairs. Witness went to the building, in which several men were at work, found insured asleep in the pantry, woke him up, and told insured that he had laid out altogether $17.10 or $17.20; witness had the amount on a slip of paper. Insured then informed witness that he wanted to get out of the order for a long time; that he led the life of a dog, and had no home, and did not want anybody at home to get his insurance Insured pulled out and handed to witness a $20 bill, with the statement that, if he took it all, he would be broke. Witness retained $15 of the $20; insured promising to pay the remainder due the witness; insured then told the witness not to advance any more money for him; that, notwithstanding insured's directions, the witness advanced the insured's dues and assessments for the months of October and November, 1912, and that such advancements were not out of the $15 payment; and that at the time of his death insured owed the witness $4.20. Witness further testified that he never saw insured from the time of the $15 payment until after his death, nor did he see respondent thereafter until after insured's death, and never told her insured paid him $15 as dues and assessments for a year in advance; that he saw respondent most every time he went to the house to collect from insured, and that she would ask and the witness would tell her what he came for, and how much, and that she always said she had no money. Witness further testified insured never paid him in advance; that insured was suspended twice, the last time on December 25, 1912, which he reported to the Supreme Lodge. The report is dated December, 1912; the report lists the names of six members suspended; among the list is "Fred" Hanheide, and the total number of members is totaled as five, and the amount $4.50, instead of...