Hopkins v. Modern Woodmen of America

• Decision Date: 05 May 1902
• Citation: 68 S.W. 226,94 Mo. App. 402
• Court: Missouri Court of Appeals
• Parties: HOPKINS v. MODERN WOODMEN OF AMERICA.

68 S.W. 226

94 Mo. App. 402

HOPKINS v. MODERN WOODMEN OF AMERICA.

Court of Appeals at Kansas City, Missouri.

May 5, 1902.

APPEAL — REVIEW — PEREMPTORY INSTRUCTION — INSTRUCTIONS SUBMITTING ISSUES TO JURY — WITNESSES — ANSWER — RESPONSIVENESS.

1. The court, on appeal, will not review the action of the trial court in refusing appellant's peremptory instruction for a verdict, where the instruction submitting the issues to the jury was given at his instance.

2. A general motion to strike out an answer of a witness, only part of which is not responsive to the question, is properly denied; it being required that the motion should be directed to the objectionable part only.

Appeal from circuit court, Jackson county; James Gibson, Judge.

Action by Minnie C. Hopkins against the Modern Woodmen of America. From a judgment for plaintiff, defendant appeals. Affirmed.

J. G. Johnson and Ellis, Cook & Ellis, for appellant. Scarritt, Griffith & Jones, for respondent.

SMITH, P. J.

The defendant, an incorporated fraternal beneficiary society, on the 12th of January, 1898, issued to George A. Hopkins a beneficial certificate, in which his mother — the plaintiff — was designated as the beneficiary therein, and by which the said beneficiary, in case of the death of the said George A. Hopkins while a beneficial member of the defendant in good standing, should be entitled to participate in the benefit fund of said defendant to the amount of $2,000, to be paid to the said beneficiary, provided that all the conditions contained in said certificate and the by-laws of defendant should be complied with. The said George A. Hopkins died on the 10th day of February, 1899, and several months thereafter this action was commenced by the plaintiff against defendant on said certificate, to recover the said amount therein specified. The defense pleaded by the answer was that in December 1898, an assessment for the benefit fund was levied by the board of directors of the defendant; that the said George A. Hopkins was regularly notified of the said assessment, and that by reason of said assessment he became liable to the defendant, and obligated to pay the local clerk of the local camp the sum of 80 cents on or before the 1st day of February, 1899; that he failed to pay to the said clerk of said camp the said sum in discharge of said assessment on or before the said 1st day of February, 1899; and that from and after the 2d day of February, 1899, he became suspended from all the rights and benefits of the said defendant society, and his said certificate thereby became null and void, etc. To this the plaintiff replied that "during the month of February, 1899, and for more than two years prior thereto, defendant, acting by and through its general officers, its agents and collectors, and each of them, whose names are to plaintiff unknown, received payments of assessments made against the said George A. Hopkins, member of defendant, and holder of said certificate, and also received on every day during said period payments of assessments made against many other members of defendant, and holders of similar certificates or policies of insurance of defendant, long after such assessments were due and payable according to the strict terms and conditions expressed in the said certificate and the printed by-laws and rules of the said defendant; that the practice and custom of the members of defendant corporation and the holders of the certificates to pay assessments long after they became due according to the requirements of said certificates and by-laws was a general custom, known to and discussed by the members of, and general officers of, the defendant, and known to the defendant; and that defendant, by its course of dealing, practice, custom, and conduct with reference to the said policy or certificate of insurance of the said George A. Hopkins, and with reference to similar policies or certificates of insurance of other members of the defendant, and the payment of assessments thereon, as aforesaid, waived the prompt payment of such assessments as called for by the strict terms of the said certificate and by-laws, and led the said George A. Hopkins and the plaintiff herein to believe, and they did believe, that the defendant would not insist that the assessments be paid strictly on dates fixed by the terms of the said certificate and the printed by-laws of defendant; and that the assessment of 80 cents due upon the said certificate or policy of insurance held by the said George A. Hopkins, due on February 1, 1899, was tendered to the defendant within the time which the defendant, according to its usual custom, practice, and course of conduct, received payments of such assessments."

The defendant society is governed by the head camp, which is a representative body composed of its elective officers, its general attorney, standing committees, and delegates from state camps. It is the lawmaking body of the society, and its directors and its head consul and head clerk are empowered to levy and collect from its beneficial members the amounts necessary to pay the amounts due to beneficiaries of its deceased members. The state camps are composed of delegates from the local camps, and the local camps and their officers are the means by which the society secures its members, and collects the benefit assessments upon which it relies for sustenance. These local camps are composed of the individuals upon whose membership and payments the welfare and success of the society depend. The chief executive officers are consuls and clerks, and it is one of the duties of the latter to keep the accounts, collect the benefit assessments, and remit them to the head camp. The by-laws of the society provide that the clerk of the local camp shall collect and receive for the head camp all benefit assessments levied, keep the records and accounts of the local camp, and report to the head camp his collections for it, and the members of his camp that are delinquent in the payment of each assessment (260, 261, and 263); that the clerk of the local camp is the agent of such camp, and not the agent of the head camp, and that no act or omission on his part shall have the effect of creating a liability of the society, or of waiving any right or immunity belonging to it (271); that no officer of the society or of any local camp can waive any provision of the by-laws which relates to the substance of the contract for the payment of benefits (34); that any beneficial member who fails to pay any benefit assessment on or before the 1st day of the month following the date of the notice thereof is thereby, ipso facto, suspended, and his benefit certificate is "absolutely null and void during such suspension" (46); that the clerk of the local camp shall report all members who fail to pay any assessment, when due, to his camp and to the head clerk, as delinquent and suspended, and that the head clerk shall immediately notify every such member of his suspension, and inform him of the requirements necessary for his reinstatement (260, 264, 114); and that any suspended member in good health may be reinstated within 60 days from the date of suspension, by paying all arrearages due and fines, having his written warranty that he is in good health (49).

It appears that the deceased member had, during the 13 months preceding his death, paid 10 assessments, and that several of these, between the 1st and 28th of the month, and after the suspension had, ipso facto, taken place, had been paid to the clerk of the local camp by the deceased without the production of the health certificate. The uncontradicted evidence was to the effect that the clerk of the local camp of which deceased was a member, with those of other camps in Kansas City, were in the...