Norman v. Order of United Commercial Travelers of America

• Decision Date: 04 March 1912
• Parties: MAY B. NORMAN, Respondent, v. THE ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA, Appellant
• Court: Kansas Court of Appeals

145 S.W. 853

163 Mo.App. 175

MAY B. NORMAN, Respondent, v. THE ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA, Appellant

Court of Appeals of Missouri, Kansas City

March 4, 1912

Rehearing Denied 163 Mo.App. 175 at 185.

Appeal from Vernon Circuit Court.--Hon. B. G. Thurman, Judge.

AFFIRMED CONDITIONALLY.

Judgment affirmed.

N. T January for appellant; Vorys, Sater, Seymour & Pease of counsel.

Scott & Bowker for respondent.

OPINION

JOHNSON, J.

This suit is on a beneficiary certificate issued by defendant, a fraternal beneficiary association, to Neil R. Norman, who died at Nevada, August 22, 1910. Plaintiff was the mother of the assured and the beneficiary designated in his application. A trial of the issues resulted in a verdict and judgment for plaintiff and the cause is here on the appeal of defendant. We shall dispose of questions of pleading and practice raised by defendants before reciting the facts of the case.

Defendant demurred to the petition on the ground that it failed to state a cause of action. The court sustained the demurrer and plaintiff, with leave, amended the petition by interlineation. Defendant then renewed its demurrer but the court overruled it and defendant immediately filed answer interposing defenses we shall discuss later. Counsel for defendant argue that the last demurrer should have been sustained but we do not sanction their contention. The amendment merely amplified the averment of one of the constitutive facts of the pleaded cause and, no doubt, was prompted by an expression of the court to the effect that the averment stated a conclusion instead of a fact. We do not share this view but hold that the original petition sufficiently alleged all of the constitutive facts of a good cause of action. Moreover, by answering to the merits, defendant waived the demurrer and could not attack the petition on appeal except on the ground that it is so vitally insufficient that it cannot support a verdict. [Rev. Stat. 1909, sec. 2119; McIntyre v. Ins. Co., 142 Mo.App. 256, 126 S.W. 227; Wyler v. Ratican, 150 Mo.App. 474, 131 S.W. 155.]

The events we have mentioned, i. e., the sustaining of the first demurrer, the amending of the petition, the filing and overruling of the second demurrer and the filing of the answer occurred on the same day, and immediately after the answer was filed the court called the case for trial. Defendant filed an application for a continuance and on the offer of plaintiff to admit that the witness, on account of whose absence the continuance was asked, would testify, if present, to the facts stated in the application, the court overruled the application and proceeded with the trial. Defendant contends this ruling was erroneous. The facts that the first demurrer was sustained and that plaintiff amended the petition, of themselves, did not give defendant a right to a continuance. The question of whether or not a continuance should be granted is one that is addressed to the sound discretion of the trial judge and an appellate court will not interfere with the ruling unless it appears to have been an abuse of discretion. [Rev. Stat. 1909, sec. 1959, 1960, 1961; Colhoun v. Crawford, 50 Mo. 458; Brinkman v. Luhrs, 60 Mo.App. 512; Keeton v. Railroad, 116 Mo.App. 281; Peterson v. Railway, 211 Mo. 498.]

It devolved on defendant to satisfy the court by affidavit or otherwise that on account of the amendment it could not go to trial. The amendment tendered no new issue and the application disclosed no good reason for any unreadiness on the part of defendant. But if it had, the offer of plaintiff to admit the testimony the application stated defendant wished time to secure, removed its ground for a continuance and justified the court in overruling the application.

Defendant is a fraternal beneficiary association organized under the laws of Ohio and licensed to do business in this state. Its membership is composed almost entirely of commercial travelers. It issues benefit certificates to its members, insuring them against accidental injury and in case of death caused by such injury, such certificate provides for the payment to the designated beneficiary of death benefits amounting to $ 6300. A commercial traveler desiring to become a member of the order and thereby to secure a benefit certificate was required, by the rules of the association, to make written application to a local lodge and his insurance would begin when his application had been accepted by the supreme lodge at Columbus, Ohio. In case there was no local lodge in a community one could be established on the application to the grand lodge of this state of twelve or more commercial travelers for membership in the order and for a charter. The grand lodge passed on the applications and if the applicants were eligible, issued them a charter, initiated them into the order and collected dues of ten dollars from each charter member. Five dollars of each member's dues was apportioned to the general fund, two dollars to the indemnity fund, two dollars to the widows and orphans' fund and one dollar to the grand lodge of this state.

In August, 1910, sixteen commercial travelers, including Neil R. Norman, applied for membership and for the institution of a local lodge at Nevada. The secretary of the grand lodge of Missouri went to Nevada August 6th, passed on the applications favorably, installed a local lodge and initiated the charter members, among them young Norman. Each of the members paid his dues which were apportioned in the manner described. The proceeds of the apportionments to the general and indemnity funds were sent to the supreme lodge at Columbus, Ohio, and those to the grand lodge of the state were forwarded to its office in Chillicothe.

The application of young Norman contained the agreement that defendant should "not be liable for any injury or death, happening prior to the receipt and acceptance of this application and membership fee by the supreme committee of this order. " The secretary of the grand lodge, though he accepted the applications of the charter members and installed the lodge did not issue the benefit certificates and it does not appear that the rules of defendant gave him authority to issue such certificates. The applications were forwarded to the supreme secretary at Columbus, were approved by the supreme executive committee and the certificates then were executed by the supreme officers and forwarded to the secretary of the local lodge at Nevada for delivery to the members. For some reason, not disclosed, the certificates were not executed until September 6th--two weeks after the death of Norman and after the supreme lodge had received notice of his death. A certificate was issued to him, probably by mistake, and sent with the others to the local secretary who delivered it to his father.

Omitting formal parts, the certificate is as follows:

"That Neil R. Norman has been duly enrolled in The Grand Commercial Army and is a member in good standing of Nevada Council No 498 at Nevada, Missouri. He is hereby insured in a sum not exceeding sixty-three hundred dollars ($ 6300), provided he shall sustain, during the continuance of his membership, and while in good standing, bodily injury effected through external, violent and accidental means, which alone, shall occasion death immediately or within six months from the happening thereof subject to the provisions, conditions and requirements of the constitution of The Order of United Commercial Travelers of America. He is further entitled to all the rights and privileges of membership accruing to him under the constitution, and he is hereby recommended to the fraternal courtesies of...