Keeton v. National Union

• Decision Date: 07 February 1916
• Docket Number: No. 11849.,11849.
• Parties: KEETON et al. v. NATIONAL UNION.
• Court: Missouri Court of Appeals

182 S.W. 798

KEETON et al. v. NATIONAL UNION.

No. 11849.

Kansas City Court of Appeals. Missouri.

February 7, 1916.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

"Not to be officially published."

Action by Cecil G. Keeton, administrator of the estate of Mary E. Keeton, and others, against the National Union, a corporation. From the judgment for plaintiffs, both parties appeal. Affirmed on appeal of defendant, and reversed on appeal of plaintiffs, with instructions.

See, also, 178 Mo. App. 301, 165 S. W. 1107.

Haff, Meservey, German & Michaels, of Kansas City, for appellants. Sparrow & Page, of Kansas City, for respondent.

JOHNSON, J.

This suit was begun February 20, 1911, by the widow and children of Cornelius Keeton, deceased, upon a policy or certificate of insurance issued by defendant to Keeton January 14, 1892, in which the plaintiffs were designated as beneficiaries. The certificate is sued upon as a policy of old line insurance, but it is alleged in the answer that defendant was a fraternal beneficiary association incorporated in Ohio and authorized to do business as such in this state, that the certificate was a fraternal beneficiary contract and was forfeited for nonpayment of dues, and that plaintiffs failed to furnish proofs of loss. The reply was a general denial.

At a former trial the court at the close of plaintiffs' evidence gave a peremptory instruction for defendant, whereupon plaintiffs took an involuntary nonsuit with leave, and in due course of procedure appealed to this court. We reversed the judgment, and remanded the cause on the ground that plaintiffs had made a prima facie case, which put defendant to proof of its affirmative defenses, and in view of a possible retrial we enunciated the law applicable to the case as it then stood. Keeton v. National Union, 178 Mo. App. 301, 165 S. W. 1107. Afterward plaintiff Mary Keeton died, and the cause was revived in the name of her administrator. Another trial resulted in a directed verdict for plaintiffs for the amount of the policy and interest from February 20, 1911, and judgment was rendered accordingly, but both parties appealed — defendant on the ground that under the pleadings and evidence plaintiffs are not entitled to recover anything, and plaintiffs for alleged error in the peremptory instruction which allowed interest to be computed only from the date of the suit (February 20, 1911), instead of authorizing interest from March 13, 1908, the date plaintiff claims the insurance became due and payable.

The cause was tried on the same pleadings we reviewed on the former appeal, and we find the evidence introduced at the last trial has not altered the general aspect of the case and presents but few questions of law not considered and determined in the reported opinion. Aside from any consideration of the doctrine invoked by plaintiffs that the law of the case as declared therein must be accepted as a final adjudication of all questions actually determined (May v. Crawford, 150 Mo. loc. cit. 524, 51 S. W. 693; Taussig v. Railroad, 186 Mo. loc. cit. 281, 85 S. W. 378; Mill Co. v. Sugg, 206 Mo. loc. cit. 153, 104 S. W. 45; Railroad v. Bridges, 215 Mo. loc. cit. 294, 114 S. W. 1084), we are convinced of the soundness of that decision, and for that reason shall treat it as authoritative.

We hold the burden devolved upon defendant if it would avail itself of defenses founded on laws applicable to beneficiary contracts of fraternal associations, to show that it was such association, authorized to do business in this state, and that the certificate in question was a contract of fraternal beneficiary insurance. These facts cannot be proved by the mere form or terms of the contract itself. Gruwell v. Knights, etc., 126 Mo. App. 496, 104 S. W. 884; Baltzell v. Modern Woodmen, 98 Mo. App. 153, 71 S. W. 1071; Aloe v. Fidelity Mutual Ass'n, 164 Mo. 675, 55 S. W. 993; Logan v. Insurance Co., 146 Mo. 114, 47 S. W. 948.

Defendant did not prove, or offer to prove, these essential facts. It did offer its articles of incorporation in evidence, and complains of the refusal of the court to admit them, but they bore upon no other fact than that defendant was incorporated in Ohio as a fraternal beneficiary association, and did not tend to prove that it was licensed and was doing business in this state as such association at the time the certificate was issued. We infer from the argument of counsel for defendant that they rely more upon their position that the certificate should be treated as a contract of assessment insurance than upon the idea that it was a fraternal beneficiary contract. For the reasons stated it must be construed as insurance of another class than fraternal beneficiary (Gruwell v. Knights, etc., supra), and we do not share the view that it should be classed as assessment insurance. In Easter v. Brotherhood, 172 Mo. App. 292, 157 S. W. 992, a case cited in support of defendant's position, we held as we do here that the absence of proof that the defendant was authorized to transact business in this state as a fraternal society precluded it from taking advantage of the laws relating to the beneficiary contracts of such societies, and on finding that the contract then under consideration had all the features of insurance on the assessment plan, we construed it as one of assessment insurance governed by the laws relating to that class of contracts. But in the present case the contract cannot be so classified for the reason that its essential features are inconsistent with the distinguishing characteristics of insurance on the assessment plan. The certificate expresses the absolute and unconditional undertaking of defendant to pay the beneficiaries $2,000 out of its benefit fund without making the obligation in any wise dependent upon the collection of an assessment upon persons holding similar contracts. Such condition, our Supreme Court have decided, is the test under our statutes, whether or not a company is an assessment company. McDonald v. Life Ass'n, 154 Mo. 618, 55 S. W. 999, and other cases cited; Gruwell v. Knights and Ladies of Security, supra. But whether the contract be construed as assessment or old line insurance the affirmative defenses must be held to have...