Hellman v. Nat. Council, Knights and Ladies of Security
Citation | 198 Mo. App. 308,200 S.W. 698 |
Decision Date | 05 February 1918 |
Docket Number | No. 14796.,14796. |
Parties | HELLMAN v. NATIONAL COUNCIL OF KNIGHTS AND LADIES OF SECURITY. |
Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis Circuit Court; Karl Kimmel, Judge.
Action by Peter Hellman against the National Council of the Knights and Ladies of Security. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
W. Paul Mobley, of St. Louis, for appellant. George D. Little, of St. Louis, for respondent.
Defendant is a fraternal beneficiary society, and on or about June 3, 1907, plaintiff became a member of such society, and defendant issued to him a benefit certificate in consideration of certain monthly premiums to be paid thereon. On or about March, 1913, defendant refused to receive further payments on the certificate, declaring it null and void, upon the ground that plaintiff had obtained the issuance thereof by fraud. Plaintiff thereupon instituted this action, before a justice of the peace, for a recovery of the premiums paid, as for money had and received. The cause reached the circuit court on appeal, where a trial before the court, a jury having been waived, resulted in a judgment for plaintiff in the sum of $230.10, being the total amount of premiums paid by plaintiff on the certificate, to wit, $212.52, with interest thereon. From this judgment defendant prosecutes the appeal before us.
To sustain the issues on his part, plaintiff introduced in evidence the benefit certificate. Among other things, it provided that if the member holding the certificate should be or become engaged in any of the prohibited occupations, "as provided in the laws of the order," then the certificate should be null and void, and that all money which had been "paid into reserve fund, beneficiary fund, or National Council general fund" should be forfeited. Thereupon plaintiff's counsel made the following statement, viz.:
Thereupon defendant's counsel made the following statement, viz.:
Plaintiff's counsel thereupon announced that he would rest upon the stipulation. Thereupon defendant requested the court to declare as a matter of law that plaintiff was not entitled to recover, which declaration the court refused to give. Defendant then introduced in evidence the "constitution and laws" of defendant society in force at the date of the application of plaintiff for membership in the society, and likewise introduced defendant's constitution and laws in force in March, 1913. The constitution and laws in force at the time of plaintiff's application for membership, in making provision regarding "prohibited occupations," provided, among other things, that persons should not be received or retained in the beneficiary or social membership of any subordinate council who were engaged in certain occupations, among these being "persons engaged * * * as saloon owner, saloon keeper or bartender engaged in the sale of spirituous, malt, or vinous liquors as a beverage"; and severe penalties were imposed upon the "financier" of any council who should receive assessments from any member whose certificate had been canceled on such ground, or who should reinstate such member. Such in substance, were likewise the provisions of defendant's constitution and laws in force in March, 1913.
It is argued for defendant, appellant here, that under the evidence and the stipulation submitted to the trial court plaintiff was not entitled in law to the return of the premiums paid by him, and that the court erred in refusing to so declare and in entering judgment for plaintiff. This is the only question before us.
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