Mathews v. Modern Woodmen of America

• Citation: 139 S.W. 151,236 Mo. 326
• Parties: MATHEWS v. MODERN WOODMEN OF AMERICA.
• Decision Date: 31 March 1911
• Court: United States State Supreme Court of Missouri

139 S.W. 151

236 Mo. 326

MATHEWS v. MODERN WOODMEN OF AMERICA.

Supreme Court of Missouri, Division No. 1.

March 31, 1911.

On Motion for Rehearing, July 6, 1911.

1. CONTRACTS (§ 147) — CONSTRUCTION — GENERAL RULES.

It is the cardinal duty of the court to enforce a contract along the line of its true intendment, considering its object, subject-matter, parties, and all its terms.

2. INSURANCE (§ 726) — MUTUAL BENEFIT INSURANCE — CONSTRUCTION OF POLICY.

The rule that a contract of insurance will be construed most strongly against the insurer applies to fraternal benefit insurance.

3. INSURANCE (§ 748) — MUTUAL BENEFIT INSURANCE — CONSTRUCTION OF POLICY — CHANGE OF OCCUPATION.

Insured, who was a jeweler when admitted to a local lodge of a mutual benefit order, afterwards became a bartender, continuing such for about six years until his death, paying dues, and dying while in good standing technically. By the application and answers forming a part of the contract, insured stated that he understood and agreed that the order did not indemnify against death from suicide or from death "resulting" from occupations prohibited to its members by its laws. Another answer stated that he would not engage in any of certain occupations, including that of bartender, except at the same time recognizing the full force of the order's law, and limiting or extinguishing its liability on the certificate of any member engaging in such occupations. The by-laws provided that, if after a person became a member he engaged in any of the employments enumerated, his certificate thereupon should be null and void, providing that he might, after becoming such member, without invalidating his certificate, engage in certain of the aforementioned forbidden occupations (the list not including bartenders) provided he filed a written waiver of any liability under his certificate founded on his death as a result of accident occurring in or traceable to his employment in such prohibited occupation. Another section stated the qualifications of persons who might become members, excluding among others, persons engaged as bartenders, and providing that, if after a person became a member, he engaged in any of the employments mentioned, his certificate should be null and void; and the policy contained substantially the same provisions. Held, that as both parties were bound by all the terms of the agreement and the policy was to be construed strictly against the insurer, it was bound by the first-mentioned statement in the application, which was to be construed as meaning that the policy was not forfeited by engaging in a prohibited occupation, unless death resulted therefrom, and the beneficiary was entitled to recover.

4. INSURANCE (§ 745) — MUTUAL BENEFIT INSURANCE — CONSTRUCTION.

Rev. St. 1899, § 7890, providing that no misrepresentation made in obtaining a policy shall be deemed material, or render the policy void, unless the matter misrepresented shall have actually contributed to the contingency or event in which the policy became due or payable, does not cover promises referring to the future, and to be kept or broken after the policy takes effect.

Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

Action by Ida Mathews against the Modern Woodmen of America. From a judgment for defendant, plaintiff appeals. Reversed, with directions to sustain plaintiff's motion for judgment on the pleadings.

Scarritt, Scarritt & Jones, for appellant. John Sullivan, for respondent.

LAMM, J.

Plaintiff is the widow of Robert J. Mathews; the latter dying in August, 1904. Defendant is an Illinois corporation organized as a fraternal beneficiary association under its laws, duly authorized as such to do a life insurance business in this state in 1895, and ever since. In that year Mathews became a member of a local lodge of defendant, designated as a "camp" viz., Kansas City Camp No. 2,002. As such member he received a benefit certificate (hereinafter designated a policy), whereby defendant contracted to pay plaintiff, his wife, the sum of $2,000 in case of his death; said policy conditioned as presently appearing. Due proofs of death loss were made on defendant's forms, and policy payment was demanded and refused. Presently plaintiff, suing, was cast — an adverse verdict coerced by a mandatory instruction. Plaintiff appeals.

All sides agree jurisdiction is lodged here by virtue of constitutional questions raised and we assume jurisdiction without discussing the grounds. Proceeding to the heart of the controversy, in small compass it is this: When admitted as a member of the local camp in 1895, Mathews, a jeweler by trade, plied that avocation. In 1898 he became a saloon bartender, and plied that trade for a livelihood until his death in 1904, paying all his dues as a member, and dying technically in good standing. Relying on the terms of his application for membership, on its own by-laws and policy terms, defendant contends that by the very act of becoming a saloon bartender, without more, Mathews' policy became, ipso facto, at once forfeited. Accordingly it tenders in court all dues paid by him subsequently to his change in avocations (R. S. 1909, § 6940), and in divers paragraphs of its answer makes allegations directed to a defense of nonliability. Contra, plaintiff asserts that by the same tokens (when certain provisions of our statutes are read into the policy) defendant is liable.

The pleadings are drawn with an eye to the foregoing contentions, their allegations being broad enough to admit proofs made, and both pleadings and proofs are pertinent to the several main propositions of law discussed by counsel in briefs and orally at this bar. Therefore the pleadings will not be reproduced in whole or in part by way of summary.

A more ready understanding of the case can be had if we point out some phases of this record before considering main propositions. Thus (assuming facts already stated):

(1) Defendant offered no evidence tending to show that Mathews' being a bartender contributed to or caused his death. To the contrary, plaintiff offered in rebuttal to take the laboring oar and prove that the fact he sold malt, spirituous, or vinous liquors over a bar as a saloon bartender in no wise contributed to or caused his death. Further, that he came by his death through other and independent causes. This offer was refused. The failure of defendant to offer proof on the point and the ruling on the foregoing offer of plaintiff throw some light on the theory of defendant adopted by the trial court.

(2) Moreover, the admissions in the pleadings and at the trial were such that plaintiff was entitled to a mandatory instruction in her favor, unless Mathews' occupation of a saloon bartender forfeited his policy. Plaintiff asked mandatory instructions, which were refused. This ruling puts it beyond question that the theory of the trial court was that his becoming a saloon bartender released all liability by forfeiting his policy. It was on that theory the court told the jury to find for defendant.

(3) There was no evidence one way or the other as to whether defendant's officers or agents, or Kansas City Camp No. 2,002, or its officers or agent, had notice or knowledge of the fact that Mathews, in 1898, left off his trade of jeweler and took up that of bartender. Nor is it shown that the officer of the local camp, whose duty it was to receive dues, received Mathews' dues with any such notice or knowledge. Nor is there any evidence tending to show that Mathews concealed his change of avocations, or by trick, deceit, or contrivance at the time threw dust in the eyes of such officers or agent, or misled them.

(4) So that the record warrants our assuming that Mathews paid his dues on the theory his policy was alive despite his change in avocation, and that defendant received his dues, as said, without notice or knowledge that he became a bartender three years after he took out his policy and thereafter plied that trade. Such knowledge, it seems, came to defendant after his death.

(5) There was a mere bit of evidence by plaintiff indicating that in a pinch one of her theories might be that defendant was not a fraternal beneficiary society at all, as defined by our statutes, but was posing as one, and masquerading under that name as an old-line insurance company. Counsel for plaintiff in closing their brief make some observations lending a little color to the same theory. But we put that theory aside. The admissions, pleadings, by-laws, policy terms, and main propositions on both sides show no serious contention but that defendant is now, and at all times was, a fraternal beneficiary society. Not only so, but the record shows that the laws of Illinois, as interpreted by the Supreme Court of that state, and defendant's articles of association, put the fact beyond dispute. We think the trial court had the right to assume that fact. With these preliminary observations, we pass to main propositions.

(a) Plaintiff invokes a statute (R. S. 1899, § 7890, in chapter 119 on Insurance, formerly R. S. 1889, § 5849, as amended by inserting between the words "persons" and "shall" the phrase, "citizens of this state," now section 6937, R. S. 1909) reading: "No misrepresentation made in obtaining or securing a policy of insurance on the life or lives of any person or persons, citizens of this state, shall be deemed material or render the policy void, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable, and whether it so contributed in any case, shall be a question for the jury."

Plaintiff's contention is that (having regard to the date of the policy, viz., 1895) the foregoing section must be read and worked into the policy and taken as a substantive part and parcel of the contract. That when so read into it liability is established.

In this connection plaintiff's learned coun...