Keeton v. National Union

• Decision Date: 06 April 1914
• Docket Number: No. 11,026.,11,026.
• Parties: KEETON et al. v. NATIONAL UNION.
• Court: Missouri Court of Appeals

165 S.W. 1107

178 Mo. App. 301

KEETON et al. v. NATIONAL UNION.

No. 11,026.

Kansas City Court of Appeals. Missouri.

April 6, 1914.

1. INSURANCE (§ 651)—ACTION ON POLICY— TRIAL—EVIDENCE—APPLICATION.

In an action on a life policy, the application, though attached and in legal contemplation a part of the policy, not being the foundation of plaintiff's claim, she need not introduce it in evidence as a part of her case or as a condition to her right to introduce the policy.

2. TRIAL (§ 61)—RECEPTION OF EVIDENCE— SCOPE OF EVIDENCE IN CHIEF.

In an action on a life policy, it was not proper to permit defendant as a part of plaintiff's cross-examination to introduce an application for insured's reinstatement, after alleged suspension, which was relied on as a defense to the policy.

3. JUDGMENT (§ 713)—RES JUDICATA—PARTIES.

Determination that defendant was an insurance company, and not a fraternal order, was not res judicata in a subsequent suit between defendant and a different plaintiff.

4. INSURANCE (§ 817)—LIFE INSURANCE— CHARACTER OF INSURER.

In an action on a policy, the burden of proving a contention that defendant was a fraternal society and not an insurance company was on it, and did not depend on the mere form of the contract as distinguished from its character.

5. INSURANCE (§ 646)—LIFE POLICY—FORFEITURE.

Though an application for a policy stated that suspension should forfeit the rights of the insured and the beneficiary, that was not a declaration that suspension would automatically work a forfeiture, and hence in an action on the policy the burden was on defendant to show not only that insured was suspended, but also that the policy was forfeited.

6. INSURANCE (§ 310)—SUSPENSION—FORFEITURE.

When a member of an insurance organization is suspended, he still possesses rights in the organization until a forfeiture has been declared.

7. INSURANCE (§ 646)—FORFEITURE—BURDEN OF PROOF.

Where a forfeiture is relied on as a defense to a policy, the burden is on defendant to clearly prove it; it being construed most strictly against the insurer and in favor of insured.

8. INSURANCE (§ 648)—SUSPENSION—APPLICATION FOR REINSTATEMENT.

An application by insured for reinstatement in an insurance organization did not prove his suspension, and was incompetent to prove such fact in an action by the beneficiary.

9. INSURANCE (§ 646)—ACTION ON POLICY— RIGHT TO SUE.

Where plaintiffs were named as beneficiaries in the policy, they were not required to show that they were entitled to sue, but the burden of proving that they were not rested on defendant.

10. INSURANCE (§ 645)—INSURABLE INTEREST —PLEADING AND PROOF.

Want of insurable interest in the plaintiffs in an action on a policy must be specially pleaded, and cannot be shown under a general denial.

11. INSURANCE (§ 646)—ACTION ON POLICY— FAILURE TO PAY PREMIUMS—BURDEN OF PROOF.

Where an insurer pleads failure to pay premiums or assessments, the burden is on it to prove same.

12. INSURANCE (§ 664)—LIFE POLICY— PROOFS OF DEATH—WAIVER—EVIDENCE.

In an action on a life policy, a letter written by plaintiff's attorneys to defendant in which the death of insured was stated, and also a letter written by defendant in answer thereto, stating in effect that it denied liability on the ground that insured had severed his connection with the company on a specified prior date by failure to pay assessments, were admissible to show waiver of proofs of death.

13. INSURANCE (§ 634)—ACTION ON POLICY— PROOFS OF DEATH—WAIVER—PLEADING.

In an action on a policy, plaintiffs were not required to plead a waiver of proofs of death in order to prove the same.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

Action by Mary E. Keeton and others against the National Union, a corporation. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

Haff, Meservey, German & Michaels, of Kansas City, for appellants. Joseph A. Wright, of St. Louis, and Noyes & Heath, of Kansas City (George P. Kirby, of Toledo, Ohio, of counsel), for respondent.

TRIMBLE, J.

This is a suit by the widow and children of Cornelius Keeton upon what is termed a "policy of insurance" (but which defendant calls a "benefit certificate"), for $2,000 issued by defendant to Keeton on January 14, 1892, payable on his death to plaintiffs as the beneficiaries named therein. Plaintiffs claim the defendant is an old line insurance company. The answer admitted that the defendant was in 1892, and ever since has been, an Ohio corporation, doing business in Missouri, and that it issued, in Missouri, to Cornelius Keeton the policy sued on (calling it, however, a "certificate," and insisting and pleading that defendant was, and is, a fraternal beneficiary association authorized to do business as such in Missouri). The answer then attempted to plead a forfeiture of the policy for nonpayment of dues, and also set up a failure to furnish proofs of death. The reply was a general denial. At the trial the policy or certificate was offered in evidence, but, although its execution had been specifically admitted in the answer, defendant objected to it unless the "application" attached was also introduced, and the court sustained the objection and required the application to be offered along with the policy. Plaintiff excepted to this ruling, but complied with it under protest and offered both the policy and the application. The latter contained this clause: "I do hereby consent and agree that any untrue or fraudulent statement made above, or to the medical examiner, or any concealment of facts by me in this application, or my suspension or expulsion from, or voluntarily severing my connection with the order, shall forfeit the rights of myself and my family, or beneficiary, to all benefits and privileges therein. I agree to make punctual payment of all dues and assessments for which I may become liable, and conform in all respects to the laws, rules and usages of the order now in force, or which may hereafter be adopted by the same." Plaintiffs then put the widow on the stand, and proved by her that Cornelius Keeton died in February, 1904. On cross-examination she was shown an "application for reinstatement" and identified Cornelius Keeton's signature thereto, and the application for reinstatement was then offered by defendant as a part of the cross-examination. Plaintiffs objected on the grounds that it had not been properly pleaded, was not a proper cross-examination, and did not prove or disprove any issue in the case. This was overruled, and the document admitted; plaintiff excepting. It was addressed to the officers and members of Mechanics' Council No. 446, National Union, located at Kansas City, Mo., dated April 10, 1902, signed by Cornelius Keeton, and contained this statement: "The undersigned, formerly a 2nd rate member of this council, suspended Feb. 10, 1902, for nonpayment of assessment No. 247, hereby makes application for reinstatement at the same rate, in accordance with the laws of the order." Plaintiffs then, in order to show a waiver of proofs of loss, offered a letter written by plaintiffs' attorneys to defendant in which the death of Keeton is stated, and also a letter written by defendant in answer thereto, which in effect denied liability, as it stated that Keeton severed his connection with the company February 10, 1902. Plaintiffs rested, and thereupon the court sustained a demurrer to the evidence and was about to direct the jury to find for defendant, when plaintiffs took a nonsuit, with leave, and have brought the case here on appeal.

The execution of the policy was admitted. The application, although attached to and in legal...