Keily v. Knights of Father Mathew

• Decision Date: 31 December 1913
• Parties: KEILY et al. v. KNIGHTS OF FATHER MATHEW.
• Court: Missouri Court of Appeals

162 S.W. 682

179 Mo. App. 608

KEILY et al. v. KNIGHTS OF FATHER MATHEW.

St. Louis Court of Appeals. Missouri.

December 31, 1913.

1. INSURANCE (§ 817)—MUTUAL BENEFIT INSURANCE —PRESUMPTIONS AND BURDEN OF PROOF.

In an action on a benefit insurance certificate, where the certificate was introduced in evidence and the death of the member established, a prima facie case was made by the beneficiaries, and the burden was on the defendant to establish its defense that the member resigned from the order prior to his death, since the status of the member, as such, was presumed to continue until the contrary was made to appear.

2. INSURANCE (§ 825)—MUTUAL BENEFIT INSURANCE —QUESTIONS FOR JURY.

In an action on a benefit insurance certificate, evidence held to make a question for the jury as to whether the member resigned from the order in his lifetime, as alleged by defendant, and hence a verdict for defendant was improperly directed.

3. INSURANCE (§ 694)—MUTUAL BENEFIT INSURANCE —RESIGNATION FROM ORDER.

Unless the compact between the members of a voluntary association otherwise provides, a member may withdraw from it at any time without the consent of the association, and hence, where a member resigned in open meeting, it was not essential that the order should act upon the resignation in order to terminate the relations between it and the member.

4. EVIDENCE (§ 147)—WEIGHT AND SUFFICIENCY —NEGATIVE EVIDENCE.

On the question of whether a member of a benefit insurance society resigned therefrom in open meeting, the testimony of a witness present at such meeting that he heard no such announcement by the member had probative force and was to be received and considered with the other facts and circumstances, since a negative fact may be shown by negative evidence.

5. INSURANCE (§ 825)—MUTUAL BENEFIT INSURANCE —QUESTIONS FOR JURY.

In an action on a benefit insurance certificate, where the beneficiaries introduced the certificate and proved the death of the member, thereby making a prima facie case, the question of whether the member resigned from the order in his lifetime was for the jury, even though there was no evidence to rebut that introduced by defendant to show such resignation, since a prima facie case once made may not be declared by the court, as a matter of law, to be overcome by the introduction of mere oral evidence and facts in pais short of admissions, even though such evidence appears to be abundant to do so and remains uncontradicted.

Appeal from St. Louis Circuit Court; Geo. C. Hitchcock, Judge.

Action by Maurice Keily and others against the Knights of Father Mathew. From an order setting aside a judgment of involuntary nonsuit, defendant appeals. Affirmed.

Ryan & Thompson, of St. Louis, for appellant. Johnson, Rutledge, Marlatt & Lashly, of St. Louis, for respondents.

NORTONI, J.

Defendant appeals from an order of the court setting aside a judgment of involuntary nonsuit entered against plaintiff. The suit is on a certificate of life insurance issued by defendant, a mutual benefit society. The sole defense relied upon in the answer is that the insured member voluntarily resigned his membership in the order shortly prior to his death. This defense however, is denied in the reply, and a sharp issue is made concerning it. Plaintiffs are children of the insured member, and it is conceded that they are the proper beneficiaries, and as such entitled to recover, provided the insurance contract obtained at the time of the death of their father.

It appears that at the trial plaintiffs introduced in evidence the benefit certificate issued by defendant order to their father several years before, and established the fact of his death, which is conceded. A prima facie case for them having thus been made, defendant assumed the burden of establishing the defense set forth in its answer, that is, that David Keily, the insured member, resigned from the order in open meeting of his council on October 27, 1910. It appears that on November 12th the insured took sick and departed this life November 24, 1910. The evidence introduced by defendant is quite convincing that Keily resigned his membership in the order, as insisted in the answer, but, of course, is not conclusive on the court to that effect, and especially is this true when considered in connection with that given for plaintiffs in rebuttal. It appears that at a recent convention of the order the Knights of Father Mathew, the rates for insurance had been readjusted and the new rating fell with a heavy hand upon the older members. Keily, the insured, was an elderly man and had been a member of the order for many years. According to the new rates, he would be required to pay on his $2,000 insurance an assessment of about $7.28 per month; whereas theretofore he had paid but $3.58 on the same. He and others of the older membership affiliated with St. Bridget's Council in St. Louis were greatly displeased because of this. On the night of October 27, 1910, this matter was freely discussed at the meeting of St. Bridget's Council, of which Keily was a member, and he participated in the discussion. The record reveals that the meeting was more or less a stormy one, and a number of the members expressed themselves with considerable force and vehemence on the subject. Mr. Keily was a man of determination and spoke with emphasis suggesting that the recent re-rating was unjust to himself and many of the others situated like he. Finally, during the meeting, Mr. Keily went forward to the desk of the secretary and paid his last previous assessment, it is said that falling due on September 30th. A number of witnesses on the part of defendant who were present say that Mr. Keily then declared that he resigned from the order and would no longer affiliate with it; that he turned around after paying the financial secretary and waved his passbook over his head as if greatly vexed, and openly asserted his resignation from the order in open meeting. However it does not appear that the meeting acted upon such resignation, if it was offered, as the presiding officer did not lay it before the council. But the secretary made a minute during the meeting to the effect that brother David Keily resigned from the order, and spread this upon the records of the council a few days thereafter. Although this minute was afterwards spread upon the record, it was not read to the council until at a meeting after the death of the insured. There is evidence, too, on the part of defendant that some of the members besought the insured not to resign from the order, but to continue as a social member, even though he abandoned his insurance. It is said that Mr. Keily paid no heed to these friendly suggestions and said that he was "done." Several witnesses for defendant having stated the facts to have transpired at the meeting of the council as above set forth, plaintiffs introduced others in rebuttal. One of these witnesses introduced by plaintiffs is an eminent expert on handwriting, who testified that upon carefully inspecting the passbook of David Keily, the insured member, it appeared the last assessment paid by him, according to the entry in the passbook, was on October 28, 1910, instead of October 27th, the date of the meeting. Moreover, the insured's passbook itself bearing the date was introduced in evidence and exhibited to the jury. This evidence, of course, tends in a way to contradict defendant's theory that Keily paid his last assessment on October 27th in open meeting, and tends to show he acted the part of a member thereafter. Plaintiffs likewise introduced two witnesses, members of the order, who were present at the meeting and were, no doubt so situate as to observe and know what occurred there in respect of remarks addressed openly to the meeting as such, that is, in...