Hatcher v. National Annuity Association

• Decision Date: 30 January 1911
• Citation: 134 S.W. 1,153 Mo.App. 538
• Parties: LUCY A. HATCHER, Respondent, v. THE NATIONAL ANNUITY ASSOCIATION, Appellant
• Court: Kansas Court of Appeals

134 S.W. 1

153 Mo.App. 538

LUCY A. HATCHER, Respondent, v. THE NATIONAL ANNUITY ASSOCIATION, Appellant

Court of Appeals of Missouri, Kansas City

January 30, 1911

Appeal from Livingston Circuit Court.--Hon. Arch B. Davis, Judge.

Case reversed and remanded. (with directions).

David C. Finley and F. S. Hudson for appellant.

(1) Appellant is indebted to respondent in accordance with the provisions set out on the face of the original certificates as issued to Hatcher by the Loyal Knights, viz.: ten times the amount he paid into the mortuary fund (See "Certificate of Assumption," page 14 of the record). (2) The mortuary fund consists of seventy-five per cent of the monthly assessments after the first year together with such of the first year's assessments remaining unused for general fund purposes (see by-laws as to the mortuary fund. page 28 of the record). (3) Respondent failed to show that the original certificates as issued to Hatcher by the Loyal Knights, increasing its promised benefits from ten to twenty-three times the amount he should pay into the mortuary fund, was legally adopted. Angell & Ames on Corporations (11 Ed.), sec. 328; 1 Waterman on the Law of Corporations, p. 235; Bacon on Benefit Societies, sec 80; Van Atten v. Modern Brotherhood, 131 Iowa 232. (4) The contract between appellant and Guy F. Hatcher is unambiguous and therefore parol or extrinsic evidence to explain, alter, modify or enlarge it should not have been admitted. McClurg v. Whitney, 82 Mo.App. 625; Halliday v. Lesh, 85 Mo.App. 285; Michael v. St Louis Mut. Ins. Co., 17 Mo.App. 23; Rubey v. Coal Co., 21 Mo.App. 159; Miller v. Dunlap, 22 Mo.App. 97; Walker v. Automobile Co., 124 Mo.App 628; Eaton v. Coal Co., 125 Mo.App. 194.

Scott J. Miller for respondent.

(1) A finding or judgment by the court on the facts will not be disturbed, if sustained by sufficient evidence, or substantially supported by the evidence. Rosche v. Cook, 81 Mo.App. 616; Moore v. Farmer, 156 Mo. 33; Mfg. Co. v. Somerville, 84 Mo.App. 226; McClanahan v. Payne, 86 Mo.App. 284; North Fur. & C. Co. v. Davis, Id. 296; Clements v. Turner, 162 Mo. 466; Flanagan v. O'Connell, 88 Mo.App. 1; Curtis v. Tyler, 90 Mo.App. 345; Corrigan v. Kansas City, 93 Mo.App. 173; Fuhlage v. Nagle, 105 Mo.App. 471. (2) Where a case is tried by the court sitting as a jury, the weight to be attached to the evidence is a matter to be determined exclusively by the court, and this court on appeal will not review it. Allen v. Jones, 50 Mo. 205; Twiss v. Hopkins, Id. 398; Miller v. Breneke, 83 Mo. 163. (3) A finding by the trial court on a question of fact which there is evidence to support will not be set aside on appeal. Allen v. Bank, 4 Mo.App. 66; Montgomery v. Harker, 81 Mo. 63; Gaines v. Saunders, 87 Mo. 557; Cook v. Farrah, 105 Mo. 492; Pierson v. Slifer, 52 Mo.App. 273; Hellman v. Bick, 55 Mo.App. 168; Grant v. Moon, 128 Mo. 43; Lester ex rel. v. Givens, 74 Mo.App. 395. (4) The court goes further and says a finding by the trial court will not be disturbed by the court on appeal where there is any evidence to support it, or the evidence tends to support it. Huckshorn v. Hartwig, 81 Mo. 648; Rothschild v. Wabash, et al., 92 Mo. 91; Mead v. Spaulding, 94 Mo. 93; Culverhouse v. Worts, 32 Mo.App. 419; Krider v. Milner, 99 Mo. 145; Handian v. McManus, 100 Mo. 124. (5) In a trial by the court without a jury, the court's conclusions of fact will not be interfered with on appeal, unless there is no evidence whatever to support them. Ball v. Railroad, 83 Mo. 574. (6) The finding of a trial judge sitting as a jury, having substantial support in the evidence cannot be reversed on appeal, whether or not it agrees with the appellate court's view of the probative force of the entire evidence. Fairbank Co. v. Cotton Oil Co., 81 Mo.App. 523. (7) Carl Blanchard was the agent of the defendant, in collecting the dues, and the court so found; and this finding will not be disturbed on appeal. Bannister v. Engine Co., 82 Mo.App. 528. (8) The question, under the evidence, of whether or not Berry knew, personally, of the amendment rider, which we claim was not necessary, was submitted to the court and tried out, and the court found that he did. This will not be disturbed on appeal. Stoutimore v. Clark, 70 Mo. 471; Robertson v. Hope, 121 Mo. 34.

OPINION

BROADDUS, P. J.

This is a suit to recover on a fraternal benefit certificate.

In 1905, there was organized under the laws of Missouri a fraternal benefit society, called the Loyal Knights, with headquarters at Chillicothe. But as the organization did not prosper, in 1907 a certain number of its members transferred their allegiance and membership to the National Annuity Association, among which was Guy F. Hatcher, the holder of the certificate in suit. The certificate as originally issued by the Loyal Knights provided for a payment at death of ten times the monthly mortuary assessments he shall have paid into the order previous to his death, not exceeding the sum of $ 2000. On August, 1, 1905, the Loyal Knights issued what are called "riders" to its members increasing the possible benefits, and such a rider was issued to Hatcher increasing the benefits on his certificate from ten to twenty-three times the total sum he should pay into the mortuary fund of the society. When Hatcher and others transferred their membership and allegiance to the appellant association, it issued the following document demoniated:

"CERTIFICATE OF ASSUMPTION.

"This is to certify that in consideration of the assumption by the National Annuity Association of Kansas City, Missouri, of the benefit certificate issued by the Loyal Knights, of Chillicothe, Missouri, above described, the undersigned member transfers his membership to the National Annuity Association, assumes its obligations and agrees for himself and beneficiaries, to abide by the laws of said association now in force, or that may hereafter be adopted.

"It is agreed and understood, however, that the...