Londry v. Sovereign Camp of Woodmen of World
| Decision Date | 10 January 1910 |
| Citation | 124 S.W. 530,140 Mo.App. 45 |
| Parties | L. F. LONDRY, Appellant, v. SOVEREIGN CAMP OF WOODMEN OF THE WORLD; THOMAS WILSON, Administrator, Respondent |
| Court | Kansas Court of Appeals |
Appeal from the Jackson Circuit Court.--Hon. John G. Park, Judge.
Judgment affirmed.
S. M Hutchinson for appellant.
(1) The defendant Woodmen of the World cannot defend this case on the ground that plaintiff was not named beneficiary in accordance with its by-laws. Because it agreed in its contract not to do so. Because it agreed in a subsequent by-law that it would not contest its payment on that ground after the policy had been in force five years. Williams v. Insurance Co., 189 Mo. 70; Levine v. Knights of Pythias, 122 Mo.App. 547. Because, by its pleading, it has waived the right to do so. What constitutes a waiver. Murmann v Wissler, 116 Mo.App. 403; Reed v. Bankers' Union, 121 Mo.App. 419; Lee v. Hassell, 39 Mo.App. 67; Burgess v. Town Mut. Co., 114 Mo.App 180; Loesch v. Union Casualty Co., 176 Mo. 654; Koeper v. Royal Invest. Co., 102 Mo.App. 543. Waiver need not be pleaded. Andrews v. Fidelity Mut. Co., 168 Mo. 157. The order had the right to waive compliance with its by-law. Aid Society v. Lupold, 101 Pa. 111; Fuas v. Deterich, 101 S.W. 293; Coleman v Anderson, 82 S.W. 1057; Railroad v. Wolf, 52 A. 247; Manning v. Grand Lodge, 86 Ky. 136; Adams v. Grand Lodge, 105 Cal. 321; Hall v. Allen, 75 Miss. 175. (2) The evidence in support of plaintiff's claim consists of documentary evidence of such character as would justify the court to declare it conclusive as a matter of law. Stronge v. Supreme Lodge K. of P., 82 N.E. 433; Masser v. Brown, 29 Pa. 128; Trumbo v. Flournoy, 77 Mo.App. 328. (3) If the documentary evidence is not conclusive that Will Nall referred to the Woodmen policy in controversy, then the question should have been submitted to the jury for its determination. Taylor v. Steamboat, 20 Mo. 254; Trumbo v. Flournoy, 77 Mo.App. 324. (4) Plaintiff is entitled to the fund in controversy because Will Nall expressed, in writing, his desire and intention that she should receive it. Lockett v. Wood. of World, 80 S.W. 1152; Hoffman v. Grand Lodge, 73 Mo.App. 47; Grand Lodge v. Reneau, 75 Mo.App. 409; Adams v. Grand Lodge, 105 Cal. 321; Bernard v. Grand Lodge, 13 S.D. 132; Hall v. Allen, 75 Miss. 175.
George H. English for respondent, Wilson, Admr.; A. H. Burnett and McCune, Harding, Brown & Murphy for respondent, Woodmen.
(1) Plaintiff's petition is bottomed on the assignment to her of the certificate. The proof failed. There was no assignment made, nor attempted to be made, nor desired by Nall. Modern Woodmen v. Puckett, 94 P. 132; Rollins v. McHatton, 16 Col. 203; Wendt v. Legion of Honor, 34 N.W. 470; Supreme Conclave v. Capella, 41 F. 1; Kemper v. M. W. A., 70 Kan. 19; Grand Lodge v. O'Malley, 114 Mo.App. 191; McLaughlin v. McLaughlin, 7 P. 86; Grand Lodge v. Ross, 89 Mo.App. 621; Sup. Tent v. Altman, 114 S.W. 1107. (2) It is admitted that there was no evidence that Nall even agreed to assign the certificate to plaintiff in consideration of her promise of marriage. There was no waiver of the order's right to pay the proper person and defend against paying the improper person the fruits of the certificate. At the death of Nall the rights of his mother became vested and the order had no right to make claim waiver. Wendt v. Legion, 72 Iowa 682; Fairbank v. Baskett, 98 Mo.App. 64; Hofman v. Grand Lodge, 73 Mo.App. 54; Grand Lodge v. Reneau, 75 Mo.App. 409; McLaughlin v. McLaughlin, 104 Cal. 171. (3) The appeal should be dismissed for failure to set forth in the abstract of record the affidavit for appeal or the substance thereof. (4) A person may become the beneficiary in a benefit certificate under such circumstances that they will acquire a vested interest in it. Hill v. Graesbeck, 29 Col. 161; Carter v. Carter, 72 N.E. 187; Railroad v. Wolf, 203 Pa. 268, 52 A. 247; Grimbly v. Grand Lodge, 125 Cal. 24, and cases cited under two preceding headings. (5) Beneficiaries named as a voluntary and gratuitous act are the only ones who do not acquire a vested interest. Jory v. Legion of Honor, 125 Cal. 20. (6) It is now held that even the member has a vested right in his contract of insurance, which the courts will protect. Lewine v. Supreme Lodge, 122 Mo.App. 555; Zimmerman v. Supreme Tent, 122 Mo.App. 597.
This suit is to recover on a benefit certificate issued by the Woodmen of the World to William H. Nall, for the beneficiary therein named Malvina E. Nall, his mother, on the 16th day of July, 1894. The insured died in March, 1906, in good standing having paid all his dues to the society up to that time. Mrs. Nall, the beneficiary, died within a few days thereafter.
The plaintiff claims the benefit of the insurance on the following grounds, viz.: That during the fall of 1895, she received and accepted an offer of marriage from the insured; that at all times since said date said insured acknowledged her as his affianced wife; and that at the time of her acceptance of said offer of marriage and in consideration of her promise and for other good and valuable considerations he agreed to and did name plaintiff as the beneficiary in said certificate and informed her that under the laws and by-laws of the society said certificate was payable to her at his death. She further claims that since the date of her engagement to the insured she loaned him divers sums of money aggregating more than $ 1,000, which were evidenced by his promissory notes; and that in consideration for such loans he made a written assignment of the benefits of the certificate to plaintiff.
The evidence shows that plaintiff loaned the insured divers sums of money. On December 14, 1895, he borrowed from her $ 310, due in one year for which he executed his promissory note. At one other time he borrowed $ 50, and at another time $ 360, for which he merely acknowledged receipt by memorandum in writing. On December 14, 1898, he borrowed $ 100, as evidenced by a writing as follows:
There was abundant evidence going to show that an engagement to marry existed between the two, and the reason he gave for not consummating it was, that he could not afford to do so while his mother lived as he would have to support her.
There was no proof of assignment by the deceased to the plaintiff of the benefit certificate, nor was there any tending to show that he at any time made any promise to that effect, or that the society knew of the relation existing between him and plaintiff.
The defendant acknowledged its liability, but denied that plaintiff was entitled to the benefits of the certificate, and set up that it was payable to Thomas Wilson, the administrator of the estate of Malvina E. Nall, the beneficiary named. Wilson voluntarily appeared and entered his appearance and claimed the benefits as such administrator.
The defendants offered no evidence. The court instructed the jury to return a verdict in favor of the administrator and against plaintiff, and against the defendant society for the face of the policy and interest. The jury returned a verdict as directed, upon which judgment was entered and plaintiff appealed.
If the plaintiff was affianced to be married to the deceased she was a proper subject as a beneficiary, and that she was so we think, is established by the evidence.
The certificate was issued and accepted subject to the constitution, laws and by-laws of the association. In the by-laws of the association it is provided that: ...
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