Neuhaus v. United Neighbors of Missouri

• Decision Date: 06 May 1941
• Docket Number: No. 25539.,25539.
• Citation: 150 S.W.2d 590
• Parties: NEUHAUS v. UNITED NEIGHBORS OF MISSOURI.
• Court: Missouri Court of Appeals

150 S.W.2d 590

NEUHAUS v. UNITED NEIGHBORS OF MISSOURI.

No. 25539.

St. Louis Court of Appeals. Missouri.

May 6, 1941.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be reported in State Reports."

Action by Abbie Neuhaus against the United Neighbors of Missouri, an incorporated benevolent and beneficiary association, for a death benefit under a membership certificate issued by defendant to William Harold Neuhaus, deceased. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Walter Wehrle, of Clayton, and C. L. Shotwell, of Ballwin, for appellant.

R. Shad Bennett, of Clayton, and Max C. Nelson, of St. Louis, for respondent.

McCULLEN, Judge.

This suit was brought by respondent, as plaintiff, against appellant, as defendant, to recover a death benefit due on a certificate of membership issued by defendant to William Harold Neuhaus. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff and against defendant in the sum of $1,491.52. Defendant duly appealed, filing its bill of exceptions in the trial court on March 29, 1940.

Defendant is a benevolent and beneficiary association incorporated under the laws of Missouri. The evidence shows that William Harold Neuhaus, the insured, was admitted to membership in defendant association on February 8, 1922, and was given a certificate of membership which provided that, in the event of his death during membership, his beneficiary should receive the sum of $1 for each active member of said association at the time of said death. The certificate provided that, upon the failure of the insured to make any payment due from him to the association during each month as levied, "then all payments made by him shall be forfeited and his membership shall thereupon cease." The certificate further provided: "This certificate to become null and void if the member is or shall become intemperate in the use of intoxicating liquors, chloral, cocaine or opium, or if his death be due thereto." In the application for membership signed by the insured, he agreed that the intemperate use of liquors, chloral, cocaine, opium or other poisonous drugs, shall forfeit his membership.

Printed on the certificate of membership was a portion of the bylaws of defendant wherein it was provided, in Article 1, Section 1, that, if any member of the association should use alcoholic stimulants or narcotics to such a degree as to impair health or produce delirium tremens, or should die from drunkenness, or while intoxicated, his certificate shall be null and void and all rights and benefits and all moneys paid shall be absolutely forfeited.

Section 2 of the bylaws provided that, upon failure of any member to pay any assessment or expense dues within the time and at the place required, his membership should be thereby forfeited and his right to any share or interest in the funds or property of the association should cease absolutely at the expiration of the time stipulated in which such payments were required to be made, and that all payments made should be forfeited.

Section 3 of the bylaws declared that per capita assessments for the relief fund were due and payable on the first day of each month and should amount to $1 for each death occurring during the prior month, provided, that if there were no deaths during the previous month there should be no assessment. Said section further provided that all assessments should be levied on or before the first day of each month by the executive committee, "who shall immediately certify its action to the Secretary and he shall thereupon notify each member of said assessment. Such notice shall be given by writing the same on a postal card or writing a letter to that effect and addressing the same to the member at his last known postoffice address. Should any member fail to pay his assessment during the month in which it may be levied, his membership shall be forfeited thereby as hereinabove provided."

Section 4 of the bylaws provided that members who had forfeited their membership may be reinstated by the unanimous vote of the executive committee and on the payment of all assessments and dues and a fine of one dollar.

Plaintiff testified that she was the mother of the insured; that he died at the City Hospital in St. Louis, Missouri, on July 27, 1936; that after her son's death she, as beneficiary, demanded that defendant pay to her the benefit provided in the certificate; that defendant refused to do so. The certificate was introduced in evidence as plaintiff's Exhibit A.

Albert W. Neuhaus, a brother of the insured, testified that he went to the office of defendant association at Ballwin, Missouri, and demanded payment of the certificate of membership, which was refused; that among the persons at the office of defendant whom he saw was Mr. Schroeder, secretary and treasurer of defendant, who stated that the association had 1,263 or 1,273 active members at that time.

Albert Leslie Mitchell corroborated the testimony of Albert W. Neuhaus concerning the visit to defendant's office and Mr. Schroeder's statement as to the number of active members of the association at that time.

Defendant adduced evidence to the effect that the insured became intemperate in the use of intoxicating liquors, it being shown by the records of the Missouri Baptist Hospital in St. Louis that he was admitted to that institution on twenty-six different occasions for varying periods of time between September 30, 1926, and October 21, 1934, and there received treatment for acute alcoholism.

Dr. Cecil E. Barnett, a physician, testified he had known insured for about sixteen or seventeen years and had treated him for chronic alcoholism. No dates were given in his testimony, except that he stated he treated the insured for acute alcoholism about one year prior to his death.

Ora Dean, police sergeant of Kirkwood, Missouri, testified for defendant that he went to the home of the insured on October 21, 1934, and found him sitting on the bed in his bedroom; that he took him to the police station where he kept him all night; that he saw him on a number of occasions when he appeared to have been drinking but witness could not remember when those instances were.

Anthony F. Meyer corroborated the testimony of Ora Dean with respect to the visit to the home of the insured in October, 1934.

August Schroeder, secretary and treasurer of defendant association, testified that he mailed cards to the insured's residence notifying him of assessments beginning with assessment No. 162 on July 10, 1935, to and including assessment No. 173 on May 13, 1936; that the insured did not pay any of said assessments within thirty days thereafter; that, on June 3, 1936, insured owed assessments Nos. 162 to 173, both inclusive, and $2 for yearly dues; that he mailed second notices of said assessments to the home of the insured, and that on June 3, 1936, insured came to the witness' home to inquire whether or not he was still in good standing; that the witness told him, "Well, you are away in arrears and in suspension"; that the insured paid him $10 at that time and he told the insured, "This doesn't put you in good standing"; that the insured said he would be back the following Sunday to pay the balance, but never returned; that, on the date of his death, the insured owed for assessments Nos. 171, 172 and 173; that the next assessments were No. 174 on June 6th and No. 175 on July 8, 1936; and that at the time of his death the insured was in arrears and owed five assessments; that, when the insured paid the $10 on June 3rd, 1936, the witness told him he would take up with the board the question of his reinstatement; that he mentioned it to the board on July 8th and the board said he was suspended; that there was no procedure for suspending a member; that the bylaws took care of that; that he gave the insured notice of all assessments up to and including No. 173, but not for Nos. 174 or 175; that No. 173 was ordered May 13, 1936.

Mr. Schroeder, on cross-examination, further testified that he had no specific memory of sending notice cards to each individual of the 1,264 members, and that his records did not show when or to whom he mailed notices; that he did the work himself or had a relative help him; that he made no record of the day the notices were mailed, or any record of checking the notices against the names and addresses of the members; that, if a member failed to respond to the original notice within thirty days after mailing it, he sent out the second ten-day notice by registered letter; that the registered receipts for such letters had been destroyed by him while the case was pending, since the first trial; that although ordered by the judge on the previous day to bring in the registered receipts for such letters, he had not done so because they had been destroyed; that he didn't know what time elapsed after the termination of the thirty-day notice before he mailed the ten-day notice, but that they were mailed and registered from the postoffice either at Manchester or Ballwin, Missouri; that he never did send the deceased a registered letter from the president and secretary warning him about excessive drinking, as provided by the bylaws; that the payment which he accepted from the deceased on June 3, 1936, covered all assessments up to and including assessment No. 169.

In rebuttal plaintiff read in evidence a part of plaintiff's Exhibit D, being Section 11 of the bylaws, which provided that any...