O'Neal v. The Grand Lodge of Brotherhood of Railroad Trainmen

• Decision Date: 27 February 1924
• Parties: MARGARET H. O'NEAL, CURATOR, Respondent, v. THE GRAND LODGE OF THE BROTHERHOOD OF RAILROAD TRAINMEN, et al., Appellants
• Court: Missouri Court of Appeals

261 S.W. 128

216 Mo.App. 212

MARGARET H. O'NEAL, CURATOR, Respondent, v. THE GRAND LODGE OF THE BROTHERHOOD OF RAILROAD TRAINMEN, et al., Appellants

Court of Appeals of Missouri, Springfield

February 27, 1924

Appeal from the Circuit Court of Greene County.--Hon. Guy D. Kirby Judge.

AFFIRMED (in part) and REVERSED (in part).

John T Sturgis and Frank B. Williams for appellant.

G. G Lydy for respondent.

FARRINGTON J. Cox, P. J., and Bradley, J., concur.

OPINION

FARRINGTON, J.--

This is a suit brought upon a certificate of insurance issued by the defendant Grand Lodge of the Brotherhood of Railroad Trainmen. The amount agreed to be paid in case of the death of John C. Smithmier was $ 1200. The plaintiff made the individuals Halls, Crain, Kerns, Banks and McBride defendants on the theory that the association or organization was a partnership and that they were responsible and individually liable for the payment of the loss sustained under this policy. A judgment was rendered by the trial court for the full amount of the policy with interest, from which all of the defendants appealed.

The trial court made the following finding of facts:

"1. That the Brotherhood of Railroad Trainmen is and was prior to the 6th day of August, 1916, a labor organization, consisting of one Grand Lodge and a large number of Subordinate Lodges."

"2. That one of said Subordinate Lodges was on said date and is located at Springfield, Missouri, and was and is known as D. H. Nichols Lodge No. 167."

"3. That the membership of said Grand Lodge and Subordinate Lodges is confined to persons of one hazardous occupation, to-wit, Railroad Trainmen engaged in the hazardous occupation of managing and operating railroad trains."

"4. That said Grand Lodge and Subordinate Lodges are unincorporated, are without capital stock, and are organized and carried on not for profit, but solely for the mutual benefit of the beneficiaries of such members as may belong to the Beneficiary Class and as may hold Beneficiary Certificates issued by the Grand Lodge."

"5. That said Brotherhood has a lodge system and ritualistic form of work and representative government."

"6. That the Grand Lodge is the supreme legislative and governing body, and that the Brotherhood has adopted a Constitution governing said Grand Lodge and governing all the members of the organization, and has adopted certain general rules which have to do with the relations between its members inter sese and between them and their employers, and has adopted a Constitution governing said Subordinate Lodges; and that said Constitutions and General Rules and the Beneficiary Certificate, when issued, constitute the contract between the Beneficiary Member and the Organization."

"7. That in and by said Constitutions, the membership of the Organization is divided into two classes, to-wit; Beneficiary Members and Non-Beneficiary Members."

"8. That members under the age of 18 and over the age of 45 years, both inclusive, and members suffering from certain disabilities, constitute the Non-Beneficiary Class; and that members above the age of 45 years are ineligible to membership in the Beneficiary Class, and that said Constitutions provide that no person can become a Beneficiary Member who is above the age of 45 years on the day his application is presented to the Lodge."

"9. That on the 6th day of August, 1906, plaintiff's decedent, John C. Smithmier, made and submitted to the then Grand Secretary and Treasurer of the Grand Lodge, thru the said Subordinate Lodge, his written application for Beneficiary Certificate, Class B., upon the regular blanks supplied by the Grand Lodge for that purpose."

"10. This in his said application, the said John C. Smithmier stated as follows:

"'I, John C. Smithmier, hereby make application thru Lodge No. 167 for the Beneficiary Certificate, Class B, $ 1000, in the Brotherhood of Railroad Trainmen, and for that purpose make the following statements as the basis of the contract between said Brotherhood and myself:

"'(a) Postoffice address--Springfield. (b) Occupation--Railroad brakeman. (c) Married or single--Married. (d) Date of birth, Year--1864, Month--August. Day of Month--23. (e) Age--41, 11 months.' and further stated in said application:

"'I, the undersigned applicant, hereby agree that all the foregoing statements and answers to questions, in forms A and B, I adopt as my own, admit to be material, warrant to be true, full and complete, and make the basis of the contract with said Brotherhood, and, in the event any untrue or incomplete statements or answers have been made, this contract shall be null and void.'

(Signed) John C. Smithmier."

"11. That the Grand Lodge Officers, charged with the duty of passing upon said application, had no information as to the date of birth and age of said John C. Smithmier, other than the information contained in said application."

"12. That said John C. Smithmier was, in fact, born on the 27th day of August, 1859, and was on the date of said application of the age of 46 years, 11 months, and 9 days; and that none of the officers of the Grand Lodge were aware of this fact prior to the death of the said John C. Smithmier."

"13. That the Beneficiary Certificate, herein sued on, numbered 36135, was issued by the Grand Lodge of the Brotherhood of Railroad Trainmen on the 14th day of September, 1906, upon the faith of said application, and was accepted by plaintiff's decedent, John C. Smithmier, on the 17th day of September, 1906, and expressly provides:

"'This certificate is issued on the express conditions that said John C. Smithmier shall comply with the Constitution, By-Laws, Rules and Regulations now in force or which may hereafter be adopted by the within named Brotherhood, which as printed and published by the Grand Lodge of said Brotherhood are made a part hereof.'"

"14. That under the said Beneficiary Certificate and the Constitution and By-Laws of said Brotherhood, the said John C. Smithmier was on the 6th day of August, 1906, ineligible to membership in the Beneficiary Class of said Brotherhood."

"15. That in said Beneficiary Certificate, as originally issued, Lillie L. Smithmier, wife of said John C. Smithmier, was designated as Beneficiary, and that afterwards, on the 13th day of June, 1916, the said John C. Smithmier revoked his direction as to payment of said certificate and directed that said payment, in event of his death, be made to Gladys L. Sturdevant, the plaintiff's ward, and that said Grand Lodge, on the 13th day of July, 1916, by A. E. King, its Grand Secretary and Treasurer, transferred said Certificate on the books of the Grand Lodge in accordance with said request and direction and returned the same to said John C. Smithmier."

"16. That on the 16th day of September, 1916, at Springfield, Missouri, said John C. Smithmier met his death by means of a gunshot wound."

"17. The Court finds that the Certificate sued on was issued on the 14th day of September, 1906, and that at that time the defendant was a foreign organization or company, with headquarters at the City of Cleveland, State of Ohio, operating under the laws of Ohio, and that at the said time had no license or authority to transact business in Missouri from the Superintendent of Insurance, and that defendant was not organized under the laws of the State of Missouri and never appointed the Superintendent of Insurance of the State of Missouri in writing to receive service of process."

The first 16 paragraphs of which were made at the suggestion and request of the defendants, and the 17th at the court's own motion, to which the defendants excepted. An additional fact which we may state is that the Constitution of the Grand Lodge of the Brotherhood of Railroad Trainmen provides for a regular assessment on all its members and a fixed amount in monthly payments to those holding insurance certificates, creating what is termed a Beneficiary Fund, out of which fund death claims shall be paid.

The appellants have practically abandoned two points made in the original brief, one going to the party plaintiff and the other that a suit in equity might be brought to cancel a policy obtained by fraud notwithstanding the death of the assured. The attorneys for appellants admit that the Supreme Court has ruled against them on these two points.

The principal contention now being made is that under the Constitution of the defendant it had no power to issue the benefit certificate to applicants over the age of 45; that the Constitution limited the officers of the Grand Lodge, or any one for it, and prohibited them from issuing a policy for one who had attained a greater age. The other point goes to the liability of individual defendants who were merely members of the order.

It was admitted that defendant F. M. Hall is a delegate and Member of the Grand Lodge and has been a member of the order for 28 years; that Paul Banks is Secretary of the Local Lodge and has been a member of the order for 10 years; that J. P. Kerns is Treasurer of the Local Lodge and has been a member of the order for 22 years; that J. H. Crain was Financier of the Local Lodge at the time the policy was issued; that Charles H. McBride is a member of the Local Lodge, was Treasurer, and has been a member for 20 years; and that Local D. H. Nichols Lodge, No. 167, is one of the Subordinate Lodges connected with the Brotherhood of Railroad Trainmen and under the jurisdiction of the Grand Lodge of the Brotherhood of Railroad Trainmen. It is shown that J. H. Crain's signature was attached to the Certificate merely as certifying the acceptance of the insurance Certificate by Smithmier.

In support of the contention made by appellants that the defendant, the Grand Lodge of the...