Neff v. Sovereign Camp, W.O.W.

• Decision Date: 07 December 1931
• Docket Number: No. 17300.,17300.
• Citation: 48 S.W.2d 564
• Parties: WILLIE NEFF, RESPONDENT, v. SOVEREIGN CAMP WOODMEN OF THE WORLD, APPELLANT.
• Court: Missouri Court of Appeals

48 S.W.2d 564

WILLIE NEFF, RESPONDENT, v. SOVEREIGN CAMP WOODMEN OF THE WORLD, APPELLANT.

No. 17300.

Kansas City Court of Appeals. Missouri.

December 7, 1931.

Appeal from the Circuit Court of Buchanan County. — Hon. Lawrence A. Vories, Judge.

AFFIRMED.

L.B. Gillihan and Miles Elliott for respondent.

Dr. E. Bradshaw and Chas. F. Keller for appellant.

TRIMBLE, P.J.

Suit on a Beneficiary Certificate, originally issued by defendant January 23, 1894, on the life of Von Roy Neff, at Cameron, Missouri, wherein was provided insurance for $2000 and $100 in addition thereto for a monument. As originally issued, the Certificate named the parents of said Neff as beneficiaries, but on September 12, 1894, insured having requested that his wife be substituted as beneficiary, a Certificate of that date was issued in lieu of the former Certificate, naming her (the plaintiff herein) as such beneficiary. Insured died at Cameron, Missouri, November 9, 1927. The only defense relied upon to escape payment of the Certificate is, that at the time of his death, deceased was not a member of the Society, having become suspended March 1, 1924, for nonpayment of the February, 1924, installment of the annual assessment on said Certificate. (As a matter of fact said installment was not paid, nor were any installments paid thereafter.) Defendant's contention is that said Certificate became null and void on said March 1, 1924. It is also contended that, in the event the court should hold the Certificate was in force at the date of the insured's death, then certain sums should be deducted from the amount due on the Certificate. The trial court held against both of these contentions and rendered judgment for the full amounts specified in the Certificate. Thereupon defendant appealed.

In considering the appeal, we are confronted at the outset with Respondent's Motion to Dismiss (accompanied by suggestions in support thereof), based on alleged failure to comply with Section 1060. Revised Statutes 1929, and Rules 15 and 16 of this court, relating to the form, preparation and contents of appellant's brief. It is charged in the motion that appellant's brief does not contain a clear and concise statement of the case, and does not set out in "numerical order" the points or legal propositions relied on, with citations of authorities in support thereof: that the brief does not separate the points or legal propositions, with the authorities cited under each, but that, if there are any, they are hopelessly commingled, and are at best mere abstract statements of law: and that it is impossible for respondent or the court to ascertain from the brief what points appellant relies on. With reference to this last, it appears from the very clear and concise brief filed by respondent that no difficulty has been encountered by respondent's counsel in ascertaining the points appellant relies on, though this, perhaps may come from knowledge acquired in the trial of the case and not from appellant's brief.

It will be seen that there is only one main or vital point in this case, with a minor point as to the amount properly recoverable if the court decides the main point adversely to defendant. This, then, presents a situation different from the cited cases wherein numerous errors were complained of and the appellate courts dismissed the appeals because of the appellants' failure to file sufficient briefs. They either contained no statement at all, or, if they did, such statement was not separate from the rest of the matter, nor clear enough to give a compact yet comprehensive view of the case; or the assignments of error were too general or so abstract in their nature as to give the court no accurate idea of the errors complained of or of the points involved in the appeal.

In the case at bar, the assignments of error are general in form, but assignments Nos. 1, 2, and 4 do raise, in different ways, the point that, on the record, plaintiff cannot recover, and this is the main point we are called upon to decide. And assignment No. 5 raises the point that the court erred in rendering judgment in excess of the amount recoverable, if the Certificate is held to have been in force at the time of insured's death.

As to the charge that appellant's brief does not state the points "in numerical order" with citation of authorities under each, it is true the points and legal propositions are not numbered in the brief, but they are separately stated and the authorities are cited separately under each. The points might have been better or more clearly stated, but we can easily see what appellant is "driving at" and hence we cannot in good conscience deny appellant's right to be heard on appeal. Although the brief is, perhaps, inartificially drawn, yet the statement of the case and the brief are sufficient to advise the court and adverse counsel of the nature of the case and the errors complained of. This makes the statement and brief sufficient. [Houck v. Bridwell, 28 Mo. App. 644.] The brief in this case is clearly no worse, if no better, than the brief in Summers v. Cordell, 187 S.W. 5, in which it is said that appellant's brief did "not come up to the requirements of" the rule, but nevertheless the Supreme Court did not dismiss the appeal but went ahead to consider and decide it. Respondent's motion to dismiss is therefore overruled. This is not to be understood as a commendation of the appellant's brief as to either its contents or form of statement, but merely as a declaration that, in view of there being only two points involved, and the brief can be easily understood as to them, it will be allowed to pass muster.

Was the policy in force at the time of insured's death? Insured was slightly over twenty years of age at the time he applied for and received the original Certificate, namely, January 23, 1894. Prior thereto, and in January, 1893, defendant's Sovereign Executive Council adopted a resolution which was, in the year 1895, ratified and adopted by defendant's Sovereign Camp, the supreme governing and legislative body of defendant, at its regular biennial session, as an amendment to its Constitution Laws and By-Laws to be known as Section 82, which reads as follows:

"Section 82. Life Membership Certificates shall be issued by the Sovereign Camp to all members of the Woodmen of the World, under the following conditions:

"When the certificate of a member who has entered the Order between the ages of sixteen and thirty-three has been in force and binding for thirty years, ...; and that after the said Life Membership Certificate has been issued, the Life Member shall not be liable for Camp dues, assessments or General Fund dues. That the proper officers of the Sovereign Camp shall issue quarterly, assessment calls upon all members of the Woodmen of the World, regardless of jurisdiction, or nation, for a sufficient amount to pay all death claims accruing during the previous three months, for said life members, who have died during the said time, under this provision and that any Life Member visiting a Camp shall be greeted with the honors of the Order and shall be seated at the right of the Consul Commander, and shall also be entitled to wear a Life Membership badge, to be designed and prescribed by the Sovereign Camp." [Italics ours.]

Pursuant to the above provisions, both the original and substitute certificates were issued to insured (in Missouri) bearing this notation or endorsement thereon: "Payments to cease after thirty years."

Upon receipt of the certificate in January, 1894, insured regularly paid, as they became due, all camp dues, assessments and general fund dues up to and including those for January, 1924, a period of more than thirty years; and, being a member who had entered the order between the ages of sixteen and thirty-three years and whose certificate had been in force and binding for thirty years, he made no further payments, not being liable therefor according to the terms of the certificate and of said section 82 of the Constitution and By-Laws. As stated, he died November 9, 1927. No questions are raised as to notice of death or any other preliminaries required of the beneficiary in the presentation of her claim. The only defense is that upon failure of the insured to pay the assesment of February, 1924, insured became automatically suspended March 1, 1924, and hence, it is claimed, the certificate became null and void and was not in force when insured died.

This defense is bottomed upon the following: That defendant is a fraternal beneficiary society or association incorporated under the laws of the State of Nebraska, with a lodge system, ritualistic form of work and a representative form of government, having no capital stock, and conducting its business without profit and for the sole benefit of its members and their beneficiaries; that its supreme lawmaking body is the Sovereign Camp composed of its officers and delegates elected from the various States in which the association does business; that said Sovereign Camp meets, and has heretofore met, biennially in the odd numbered years, and at each session it enacts, adopts, amends and passes laws and by-laws for the government and control of its business and the relationship of its members, all of which are known as the Constitution, laws and by-laws of said association; that it has done this at every biennial session of the Sovereign Camp from the year 1893 to the present time.

That defendant is only an impartial channel through which the members carry on their business with each other; that in the collection of funds from the members and in the paying out of sums due to beneficiaries defendant acts as the agent of both parties and holds all funds coming into its possession in trust for the use and benefit of its members and the beneficiaries under the contracts issued; that each member contracts and agrees to pay the assessments at the rate required and to be bound by the...