Hubbard v. Modern Brotherhood of America

• Decision Date: 02 April 1917
• Docket Number: No. 11924.,11924.
• Citation: 193 S.W. 911
• Parties: HUBBARD v. MODERN BROTHERHOOD OF AMERICA.
• Court: Missouri Court of Appeals

193 S.W. 911

HUBBARD v. MODERN BROTHERHOOD OF AMERICA.

No. 11924.

Kansas City Court of Appeals. Missouri.

April 2, 1917.

Appeal from Circuit Court, Adair County; C. D. Stewart, Judge.

"Not to be officially published."

Action by Emma Hubbard against the Modern Brotherhood of America. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Campbell & Ellison, of Kirksville, and Sparrow & Page, of Kansas City, for appellant. Weatherby & Frank and J. E. Rieger, all of Kirksville, for respondent.

BLAND, J.

This is a suit upon a fraternal benefit certificate issued by defendant on March 31, 1903, to respondent's son, Lewis Hubbard. The insured died on the 8th day of December, 1913. The by-laws of the defendant under which the certificate was issued provided that all insurance should become ipso facto null and void if the holder of a certificate at the time of its issuance had or thereafter shall become intemperate in the use of alcoholic drinks, or if such holder's death shall result directly or indirectly from his intemperate use of such alcoholic drinks, or if such person shall have entered or shall thereafter enter upon the manufacture or sale of malt or spirituous or vinous liquors or beverages.

The evidence shows that the insured was a drinking man for several years before his death, and that his death probably resulted from excessive alcoholic drinking. The grand jury of Adair county returned four indictments against the insured in November, 1911, charging him with the illegal sale of liquor and for permitting liquor to be drunk at and about his place of business, which business was that of a retail drug store merchant. The evidence further shows that the prosecuting attorney of Adair county in July, 1912, filed two informations against the insured charging him with the illegal sale of liquor in the month of June, 1912; that thereafter the insured entered pleas of guilty to all of these indictments and informations, and was fined $300 and costs in each case.

The evidence further shows that in July, 1912, the circuit court of said county enjoined the insured and permanently closed the insured's drug store by injunction, finding that the insured was selling liquor illegally on every day of the week, and indiscriminately, and was permitting drunken, lawless, and immoral persons to assemble at his drug store both day and night, and that immoral and lawless acts and conduct were indulged in on his premises to the annoyance of the people in that community, and that the insured was maintaining a public nuisance, and that all of said acts and conduct was continuous from August, 1911, down to the filing of the petition in said case, to wit, July 2, 1912.

The evidence further shows that the officers of defendant's subordinate lodge at Kirksville knew of this injunction and knew of insured's personal habits. S. S. Cavett, who was watchman of the subordinate lodge, testified that he read of the court's action in the papers at the time of the issuance of the injunction against the insured.

Mr. Curry, president of the local organization of defendant, testified that he knew the insured was a drinking man several years before his death; that at the time the insured's drug store was closed by injunction he was employed by the prosecuting attorney and the Law and Order League to go into the insured's drug store and remain there as watchman in order that insured's drug store right remain open while the injunction was in force; that this was some time during the month of July, 1912; that he had information that insured sold liquor before he was placed in insured's drug store as a watchman.

The evidence further shows that Mrs. Willows, secretary and treasurer of defendant's local lodge, whose duty it was to collect dues and assessments from the members each month, testified that for one year or more before the insured's death she had the general impression that he was a drinking man, and that he conducted "a leaking drug store," and that she learned of insured's habits before the injunction was placed against the drug store. Notwithstanding that Hubbard's delinquencies were well known in the community, he was treated as a member in good...