Karst v. Chicago Fraternal Life Ass'n
| Decision Date | 03 July 1931 |
| Docket Number | No. 4887.,4887. |
| Parties | KARST v. CHICAGO FRATERNAL LIFE ASS'N. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, New Madrid County; John E. Duncan, Judge.
"Not to be officially published."
Action by Emily H. Karst against the Chicago Fraternal Life Association. From a judgment for plaintiff, defendant appeals.
Affirmed.
Joslyn & Boone, of Charleston, for appellant.
Sharp & Baynes, of New Madrid, for respondent.
This case was tried to a jury in the circuit court of New Madrid county, Mo., at the May term thereof, 1930, resulting in a verdict and judgment for the plaintiff in the sum of $2,400.
The suit is based on a life benefit certificate issued by defendant, dated August 1, 1925, to Michael W. Hoffman, wherein plaintiff, Emily H. Karst, is the beneficiary. Plaintiff brought this suit to the May term, 1928, of the circuit court of New Madrid county, Mo. Service was had to the September term of said court. There was first a default judgment, which appellant moved to set aside. The motion was overruled and the cause was appealed to this court, and at the October term, 1929, this court reversed the New Madrid county circuit court and ordered it docketed for trial. 22 S.W.(2d) 178. The cause was finally tried on June, 6, 1930, in the circuit court of New Madrid county, Mo.
The petition alleges that Hoffman died about December 1, 1926. The proof was that he disappeared about that date, vanished, and none of his acquaintances, nor any other person known in this case, has ever seen him since—dead or alive.
The policy which as read in evidence is a mutual benefit contract, and the insured is designated as a member of the association. The policy contains this clause: "The benefits provided for in this benefit certificate shall not be payable on account of the member's disappearance, unless all assessments and dues shall have been paid up for the full term of the member's expectancy of life, according to the American Experience Table of Mortality."
Rule 319 of the constitution and by-laws of the Chicago Fraternal Life Association (printed in full in abstract) stipulates that disappearance or long-continued absence of a member shall not be regarded as evidence of death, or give a right to recover until the full term of the expectancy of life has expired, according to the American Experience Table of Mortality, and all payments required by the laws of the society have been made.
Motion for new trial was overruled and proper steps taken for an appeal to this court. Several assignments of error are insisted upon here. The testimony showed that Hoffman lived at Marston, Mo., where he had made his home for several years. He owned a one-half interest in a farm of something over four hundred acres near Marston and also owned a business building in Marston in which was a barber shop, and he himself occupied the two other rooms in the building, one as an office and the other as a living room. The testimony showed that Mr. Hoffman was a man around sixty-eight years of age, of a happy, jovial disposition, with many friends, and was energetic and active in the conduct of his business, which consisted in the management of the farm hereinbefore mentioned, and the evidence also showed he bought and sold cotton seed and other farm products. On the day before Thanksgiving, 1926, Hoffman left Marston to go to Memphis, Tenn., on business. Before leaving he had discussed with various witnesses concerning his plans for the operation of the four hundred acre farm the next year. One of his tenants testified that he had rented the farm from him for the next year; that he had been out there talking over with him the plans for clearing up a thicket during the next season and in other ways discussing the coming crop, and he told Walter Richardson, a ginner, that he was going to Memphis and that if any cotton came in for him while he was gone to keep it and he would pay the ginning charges when he came back. He had also talked to a witness, George Neumann, about making some improvements on his farm and had tried to get Neumann to boss some ditching he wanted done. He also told Neumann that he was going to Memphis, and might possibly go on from there to Alabama on a real estate deal which he was anxious to close up. Witness Scoby testified that he had business dealings with him and had bought some cotton seed and that he had arranged with Scoby to take care of it so that he could sell it during the next planting season; that is, during the spring of 1927. The witness Chester Townsend was by profession a barber and rented from Hoffman and ran his shop in one room of the business building, in an adjoining room of which Hoffman made his home; he shaved him just before train time and remarked that he would like to have dinner with witness the next day (Thanksgiving) but that he guessed he would take Thanksgiving dinner in Memphis. While in Memphis he wrote witness Townsend a letter in which he instructed him that all his first-class mail be forwarded to Memphis until Monday, to the rooming house of L. Riles, where Hoffman stayed while in Memphis. On or about the last day of November, 1926, Hoffman went into the office of Wilson & Ward, cotton factors in Memphis, and while there cashed a check on the Bank of Marston for $100. Mr. Molray, the cashier of the Wilson-Ward Company, telephoned to the Bank of Marston ascertaining that the check was good and gave Mr. Hoffman the money on it. He also testified that his firm had some cotton on consignment for Mr. Hoffman and that when this cotton was sold the ledger showed a credit to Hoffman of $79.69; that the credit was still on the book and had never been withdrawn. Testimony of the cashier of the Bank of Marston showed that at the time Mr. Hoffman had a balance of $264.03 in that bank and that aside from the check for $100 which was cashed in Memphis, there later came in no other checks and no other checks had been received from Mr. Hoffman. Mr. Hoffman's daughter, Mrs. Karst, the beneficiary under the policy, testified that Mr. Hoffman frequently came to visit her in her home in St. Louis, coming and going as he pleased; that between visits she kept up a correspondence with him; that she first learned of his disappearance by receiving a letter from Mr. Neumann asking if Mr. Hoffman was with her; that finding out that he had disappeared she went to Marston to investigate and found the papers and everything just as he had left them; that he had apples in his room wrapped in paper with covers off the bed over them to keep them from freezing; that one thing impressed her very much was this, that he always wore a certain kind of flannel underwear and always bought this three suits at a time; that he had just recently purchased that fall three suits of underwear and she found two of the suits there in his room; that the particular brand of underwear was difficult to get; that from there she went to Memphis and asked the Memphis police to help look for him and that they broadcast the disappearance over the radio at Memphis; that she found out from Memphis that he had left there for Osceola; that she went to Osceola but could find no trace of her father there; that she sent out about fifty circular letters and wrote all of her relatives and friends with whom she thought it possible he might be and that the matter was reported to the St. Louis police force and that they broadcasted the fact of his disappearance four times; that she took over his affairs as trustee, being appointed by her brothers and sisters, that her father left money in the Bank of Marston and that he had $200 due him from the Senter Commission Company in St. Louis in addition to the money due from the Wilson-Ward Company at Memphis.
The benefit certificate sued on and filed with plaintiff's petition contained this paragraph:
The answer of the defendant admitted that it was a legally constituted fraternal benefit society, incorporated and existing by virtue of the laws of the state of Illinois and authorized to transact business in the state of Missouri. The answer denied the death of Michael W. Hoffman on or about the 1st day of December, 1926, or at any other time, and denied that he had complied with the conditions and provisions of this agreement with the defendant as contained in the certificate of insurance, and the by-laws and constitution of said association, and averred that said Hoffman for himself, his heirs, beneficiaries, and assign, agreed to be bound by the laws, rules, and regulations of said association and that the contract existing between said Hoffman and the defendant consists of the terms contained in the application, the benefit certificate, and the constitution and by-laws of said association, and embraces and includes section 319 of the constitution and by-laws of the defendant, which section 319 of the constitution...
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