Holman v. Modern Woodmen of America

• Decision Date: 27 June 1922
• Docket Number: No. 16726.,16726.
• Parties: HOLMAN v. MODERN WOODMEN OF AMERICA.
• Court: Missouri Court of Appeals

243 S.W. 250

HOLMAN v. MODERN WOODMEN OF AMERICA.

No. 16726.

St. Louis Court of Appeals. Missouri.

June 27, 1922.

Rehearing Denied July 1, 1922.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by Fannie E. Holman against the Modern Woodmen of America. Judgment for plaintiff, and defendant appeals. Affirmed.

Truman Plantz, of Warsaw, Ill., John E. Turner, of St. Louis, and Barbour & Mc-David, of Springfield, for appellant.

George V. Reynolds, Fred J. Hoffmeister, and James J. O'Donohoe, all of St. Louis, for respondent.

BRUERE, C.

This action was instituted, on November 16, 1917, by the plaintiff, Fante E. Holman, wife of Charles S. Holman, to recover the death benefit on a benefit certificate issued to said Charles S. Holman by the defendant, and in which plaintiff was named beneficiary. A verdict and judgment was rendered in favor of plaintiff for the full amount of the policy, with interest, and defendant has appealed.

The petition, which is in the customary form, alleged, inter alia, the issuance by the defendant of the policy in suit on 22d day of November, 1905, by which the defendant agreed to pay plaintiff the sum of $2,000 on the death of her husband, Charles S. Holman, if he then was a member in good standing in defendant order, that Charles S. Holman died on the 21st day of December, 1910, and that at the time of his death he was a member, in good standing in said order. Plaintiff further alleged in her petition as follows:

"That on or about the 13th day of September, 1884, she was lawfully married to Charles S. Holman; that she continued to live with the said Charles S. Holman as his wife until on or about the 20th day of December, 1900, in the town of Potosi, county of Washington, state of Missouri; that on the day aforesaid last mentioned, the said Charles S. Ilolman departed from his home and place of abode where he was residing with the plaintiff, and since his departure aforesaid, on said date aforesaid, plaintiff has not seen the said Charles S. Holman, nor has she been able to locate the whereabouts of the said Charles S. Holman; that no trace or information pertaining to him has since been obtained by his family, acquaintances, or friends, though diligent search and inquiry has been made through all sources and by all possible means; that the family relations and surroundings of the said Charles S. Ilolman were pleasant at the time he left home; that he had no business complications to oppress, worry, or annoy him, and that there was no cause why he should not return home or give information as to his whereabouts, if he continued to live."

In its answer the defendant admitted that it was a fraternal beneficiary society, and that it issued its certain benefit certificate in the sum of $2,000 to plaintiff, as beneficiary, but denied every other allegation contained in the petition. The answer further alleged that the by-laws of the defendant order were a part of the contract sued on, and required that proofs of death be filed, and that no proofs of death had ever been tiled by the plaintiff. For another defense the answer alleged that section 06 of its by-laws, in force from and after the first of September, 1908, contained the following provisions:

Section 66: "Disappearance No Presumption. of Death.—No lapse of time or absence or disappearance on the part of any member, heretofore or hereafter admitted into the society, without proof of the actual death of such member, while in good standing in the society, shall entitle his beneficiary to recover the amount of his benefit certificate, except as hereinafter provided. The disappearance or long-continued absence of any member unheard of, shall not be regarded as evidence of death or give any right to recover on any benefit certificate heretofore or hereafter issued by the society until the full term of the member's expectancy of life, according to the National Fraternal Congress Table of Mortality, has expired within the life of the benefit certificate in question, and this law shall be in full force and effect, any statute of any state or country or rule of common law of any state or country to the contrary notwithstanding. The term `within the life of the benefit certificate,' as here used, means that the benefit certificate has not lapsed or been forfeited, and that all payments required by the by-laws of the society have been made."

The answer further alleged that the full term of the expectancy of life of said Holman, according to the National Fraternal Congress Table of Mortality, had not expired.

The trial court, on motion of plaintiff, struck out that part of the answer setting up section 66 of the by-laws, on the ground that same did not constitute a defense to this action, and defendant filed a term bill of exceptions.

The reply was in the nature of a general denial, then alleged that, within a reasonable time after the death of said Charles S. Holman, the plaintiff notified the defendant of his death, and made claim under the policy in suit, but that the said defendant disclaimed all liability thereunder, thus waiving the right, if it existed, to require proofs of death to be furnished.

It is first urged that the trial court erred in sustaining plaintiff's motion to strike out of defendant's answer its disappearance by-law (section 66).

Since the judgment in this case was rendered, the Supreme Court of this state, in the case of Cobble v. Royal Neighbors of America, 236 S. W. 306, has declared that this by-law is void, on the ground that it runs counter to the common and the statute law of this state. The point urged is therefore, ruled against the defendant.

It is next urged that the judgment is not supported by the evidence. The facts developed by the evidence tended to prove the allegations of the petition, and are substantially these: The insured at the time of his disappearance was 46 years old. He was married to the plaintiff in the year 1884, and lived with her and his four children on a farm in Washington county, Mo. It appears that he was a man of sober and industrious habits, kind and attached to his family, and that his domestic life was a happy one. In 1906 he left his home and went to Potosi, and from there to St. Louis, Mo., where he worked until his disappearance in December, 1909, and that the only motive he had in leaving home was to secure employment and earn a livelihood for his family. While in St. Louis he corresponded with his wife every week, and regularly sent her money for the support of herself and children. It further appears that the insured, during the year 1909, was in poor health. He was last heard from by letter, which he wrote in St. Louis, Mo., on December 20, 1909, addressed to his wife, and in which he informed her that he was going to a hospital. After the 20th day of December, 1909, plaintiff's letters, addressed to her husband at his last-known address in the city of St. Louis were returned to her unopened by the postal authorities and no tidings concerning him came to those likely to have heard from him. Fruitless search for the absentee was thereafter made by his family, as well as by defendant order. The facts and circumstances in this case, disclosed by the evidence, are such as to render improbable the unexplained failure of the insured to communicate with his family since 1909, and his absence from home and friends, from any other cause save that of death. We think the evidence was sufficient to bring into operation the common-law presumption that after an unexplained absence for a period of more than 7 years, with' out being heard of, a man...