Martin v. Modern Woodmen of America

• Decision Date: 30 June 1911
• Citation: 158 Mo. App. 468,139 S.W. 231
• Parties: MARTIN v. MODERN WOODMEN OF AMERICA.
• Court: Missouri Court of Appeals

139 S.W. 231

158 Mo. A. 468

MARTIN v. MODERN WOODMEN OF AMERICA.

St. Louis Court of Appeals. Missouri.

June 30, 1911.

Rehearing Denied July 15, 1911.

1. INSURANCE (§ 815)—PLEADING—DEATH OF INSURED.

Allegation of death of insured in a benefit certificate at a certain time did not make inadmissible evidence of disappearance to support presumption of death from absence.

2. DEATH (§ 2)—EVIDENCE—SUFFICIENCY.

In an action on an insurance policy, evidence held sufficient to meet the requirements of the rule that unexplained absence for seven years without tidings to those likely to have heard, and without apparent motive for such absence, and unavailing search, a presumption of life ceases.

3. DEATH (§ 2)—EVIDENCE—SUFFICIENCY— PRESUMPTION FROM ABSENCE.

Evidence held to show a sufficient search for the missing person to support the presumption of death from absence.

4. INSURANCE (§ 815)—MUTUAL BENEFIT INSURANCE— WAIVER OF LIMITATIONS.

In an action on a mutual benefit policy. proof of waiver of the 12-month limitation within which the policy required action to be brought was permissible without the waiver having been specially pleaded; such proof being permissible under the allegation of full performance of the conditions.

5. INSURANCE (§ 812)—MUTUAL BENEFIT INSURANCE— LIMITATION OF ACTION—WAIVER.

Where the general attorney of a mutual benefit society, knowing that plaintiff, a beneficiary, depended on showing death by evidence of absence for seven years, and that plaintiff's time allowed by the policy for bringing suit was passing, insisted repeatedly upon more information from plaintiff as to the disappearance and search, and postponed final decision from time to time up to and beyond the expiration of the year, and then placed refusal to pay the claim on the ground that the society was not satisfied that insured was dead, its letters indicating to a reasonable mind a desire that plaintiff postpone bringing suit until the society completed its investigations, a finding of a waiver of limitation was justified.

6. INSURANCE (§ 817)—MUTUAL BENEFIT INSURANCE—AMOUNT OF RECOVERY—BURDEN OF PROOF.

The obligation to pay becomes binding on an insurance society when the death occurs, and, if there are conditions which would delay or diminish recovery, the burden of pleading and proving is on the society, and, in the absence

thereof, plaintiff's absolute right to the amount called for will be assumed.

7. INSURANCE (§ 799)—MUTUAL BENEFIT—AMOUNT OF RECOVERY—INTEREST.

When the contingency of death occurs, the obligation of the insurance society becomes absolute and the sum presently due, and by virtue of Rev. St. 1909, § 7179, allowing interest on written contracts, the beneficiary becomes entitled to interest after the amount becomes due, and, where the proof of death depends on absence for seven years, the interest runs from the expiration of that time.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by Anice Martin against the Modern Woodmen of America. Judgment for plaintiff. Defendant appeals. Affirmed.

Suit filed September 9, 1908, by the widow of Henry J. Wilt, as beneficiary in a benefit certificate for $1,000 issued to Wilt by the defendant, a fraternal beneficiary association, on August 6, 1906. The plaintiff had judgment for $1,089.16, the amount of the certificate and interest from March 14, 1907, and defendant has appealed. The petition was in usual and proper form, and avers, among other things, that "on or about the 14th day of March, 1907, the said Henry J. Wilt died, and at the time of his death he was a member in good standing in defendant order and had complied with all the laws, rules and requirements of said order"; also, "that since the death of said Henry J. Wilt she (the plaintiff) has fully complied with all the terms and conditions imposed upon her by said contract" the benefit certificate. It prays for judgment for the sum of $1,000, with interest thereon and costs of suit. The answer, after a general denial, admits in effect that "on the 6th day of August, 1896, the defendant issued its benefit certificate No. 267,238 to said Henry J. Wilt, wherein and whereby, under the certain conditions mentioned in said contract and subject to the laws, rules, and regulations of said order forming a part thereof, this defendant promised to pay to Anice Wilt the sum of $1,000 upon the death of said Henry J. Wilt, if, at the time of his death, he should have complied with all the laws, rules, and regulations of defendant's said order and be a member in good standing thereof"; and then, among other things, avers that the benefit certificate sued on was issued by appellant, an Illinois corporation to Henry J. Wilt, at the time of its issue a resident and citizen of the same state, and that the benefit certificate contained a stipulation that no action shall be maintained unless brought within one year after Wilt's death, and that this provision of the contract was a valid and binding agreement under the laws of the state of Illinois as construed by the courts of that state in certain cases in the answer cited; that if it be true as averred in the petition that said Henry J. Wilt died on the 14th day of March, 1907, this action, as set forth in said petition, was not commenced within one year from the date of the death of said Henry J. Wilt. The reply was a general denial.

There is no necessity for stating all the facts or evidence shown in support of the plaintiff's petition. It is sufficient to say that plaintiff's evidence made a prima facie case, unless it be that the fact of Wilt's death was not properly and sufficiently proven. We will confine our statement to the evidence bearing on that fact, and on the defense that the action was not brought within a year as stipulated and on the waiver of that stipulation relied upon by the plaintiff and the question of what date interest should have been allowed from. We may say here, however, that plaintiff necessarily relies upon the common-law presumption to establish Wilt's death, and the facts must be sufficient to create that presumption.

By the certificate, which was offered in evidence, defendant certified "that Neighbor Henry J. Wilt, a member of Laurel Camp No. 1246, located at East St. Louis, Ills., is, while in good standing in this fraternity, entitled to participate in its benefit fund to an amount not to exceed one thousand dollars, which shall be paid at his death to Anice Wilt, related to him as wife, subject to all the conditions of this certificate and by-laws of this order and liable to forfeiture if said member shall not comply with said conditions, laws and such by-laws and rules as are or may be adopted by the head camp of this order from time to time, or the local camp of which he is a member." It then contains, among other things not necessary to note, the following: "This benefit certificate is issued and accepted only upon the following express warranties, conditions and agreements: * * * (4) In case of his death while a member of this fraternity, in good standing, his beneficiary shall receive such sum as may be collected from an assessment upon all members according to the certificate held by each, but said sum to be paid shall not exceed the amount stated on the face of this certificate. * * * (7) No action can or shall be maintained on this certificate unless brought within one year from the date of the death of said neighbor."

Wilt, a cigar maker, then about 41 years of age, married the plaintiff in the city of St. Louis on October 15, 1895. In April, 1896, they went to housekeeping at No. 207½ North Twelfth street in said city, and lived together there until March 12, 1900, when he disappeared. Their married relations were invariably pleasant and amicable, and he was a kind husband and seemed devoted to his home, though he was not of a jolly disposition, and, being better educated than the plaintiff, sometimes corrected her. He contributed some $9 per week toward the support of the home, which sum plaintiff added to by renting out two of their four rooms. The couple were childless. His place of employment during all the time of the marriage until he disappeared was a cigar factory in East St. Louis. For some two years before his disappearance he had been in bad health, and on that account for two years had usually, though not always, slept in a room in East St. Louis which he shared with three men, paying as his share $1 per week. He had an antipathy toward East St. Louis as a place of residence; hence did not take his wife there to reside. He usually came to his home in St. Louis and spent Saturday and Sunday with his wife. He was a member of the East St. Louis lodge of the defendant order, and was an officer therein, and a regular attendant at...