Henderson v. Modern Woodmen of America

• Decision Date: 01 April 1912
• Citation: 146 S.W. 102
• Parties: HENDERSON v. MODERN WOODMEN OF AMERICA.
• Court: Missouri Court of Appeals

146 S.W. 102

HENDERSON v. MODERN WOODMEN OF AMERICA.

Kansas City Court of Appeals. Missouri.

April 1, 1912.

Rehearing Denied April 30, 1912.

1. INSURANCE (§ 784)—MUTUAL BENEFIT INSURANCE—CHANGE OF BENEFICIARIES—BYLAWS.

Strict compliance with rules of a mutual benefit association for making a change in beneficiaries is not necessary; a member being only required to substantially comply therewith.

2. INSURANCE (§ 784)—MUTUAL BENEFIT INSURANCE—CHANGE OF BENEFICIARIES—COMPLIANCE WITH BY-LAWS—WAIVER OF OBJECTION.

Where, in an action against a fraternal insurance order on a benefit certificate, the order paid the amount of the policy into court, and asked for a determination as to whether intervenors, who claimed, by reason of an attempt by the insured, to make them beneficiaries, or the plaintiff, as original beneficiary, were entitled thereto, its act amounted to a waiver of any right to insist that the insured did not comply with the by-laws of the order in making the change in beneficiaries.

3. INSURANCE (§ 784)—MUTUAL BENEFIT INSURANCE—CHANGE OF BENEFICIARIES—COMPLIANCE BY LAWS—WAIVER.

A mutual benefit association's by-laws are for the benefit of the order alone, and a beneficiary may not complain that they were not complied with in an attempt to change beneficiaries, so that where an insured did all in his power to make the change, and the order waived strict performance, the contemplated beneficiaries would take, though the acts were not sufficient within the by-laws.

Appeal from Circuit Court, Vernon County; B. G. Thurman, Judge.

Action by Flora Henderson against the Modern Woodmen of America. Vergie Merchant and another interplead. From a judgment for interpleaders, plaintiff appealed. Affirmed.

M. T. January, of Nevada, Mo., for appellant. W. O. Jackson, of Butler, for respondents.

BROADDUS, P. J.

This suit was instituted against the Modern Woodmen of America by Flora Henderson on a benefit certificate issued to Albert Merchant and payable to the plaintiff, his mother. The Modern Woodmen of America answered by bill, interpleading Vergie and Lawrence Merchant, claimants of the benefits under the certificate, and paid the money into court. Vergie and Lawrence Merchant interpleaded for the fund, and on the trial were successful, and the plaintiff appealed. The respondent Vergie was the wife, and the respondent Lawrence was the son of the insured. Albert, before his marriage, became a member of the local Woodmen Camp, at Rich Hill, Mo., and took out the certificate in question August 30, 1908, payable to Flora Henderson, his mother. Albert Merchant died May 8, 1911, and it is claimed by the respondent interpleaders that he changed his beneficiaries to his wife and son before his death.

The evidence showed that it was the intention of the deceased to take out another policy for the benefit of his wife and son, but he failed. Not having taken out such other insurance, when he became sick and learned from his doctor that he could not recover, he concluded to change the beneficiary in the certificate from plaintiff to respondents. A short time before he died he requested that some one would go to the camp clerk, who lived miles distant, so he could have him change the certificate, and make it payable to his wife and child, but no one went. The plaintiff lived 13 miles away, and there was no time in which to go to her and obtain the certificate. He then requested his brother-in-law, John A. Edwards, who was present, to write the following paper: "Rockville, Mo., Monday, May 8th, 1911. I, Albert Merchant, being sick in a dangerous condition and desiring to change my beneficiary of policy of M. W. of A. from Mrs. A. W. Henderson, to my wife and child, Mrs. Vergie M. Merchant and Lawrence E. Merchant, half of policy to each. This being my earnest request. [Signed] Albert A. Merchant." The paper was signed by a mark, the doctor holding and steadying the man's hand, who was in a very feeble condition, and died shortly thereafter. The paper was delivered to the local camp. There is evidence to the effect that plaintiff when shown this paper expressed her satisfaction at the change, but she testified that she did not remember that she did.

Sections 47 and 48 of the by-laws of the defendant organization in force at the time of the issuance of the certificate and at the time of the member's death provided for the manner in which a change of beneficiary shall be made. They are as follows:

"If a member in good standing at any time desires a change in his beneficiary or beneficiaries, and to obtain a new certificate, he shall pay to the camp clerk a fee of 50 cents and deliver to him his benefit certificate, with the surrender clause on the back thereof duly filled out and executed by him, designating therein the change desired in the beneficiary or beneficiaries. The execution of such surrender clause by the neighbor shall be in the presence of, and attested by, his camp clerk. If, however, the member be so situated that he cannot execute the said surrender clause in the presence of the clerk of his camp, the signature of the...