Ordelheide v. Modern Brotherhood of America

• Decision Date: 01 March 1910
• Citation: 125 S.W. 1105,226 Mo. 203
• Parties: ORDELHEIDE v. MODERN BROTHERHOOD OF AMERICA.
• Court: Missouri Supreme Court

125 S.W. 1105

226 Mo. 203

ORDELHEIDE v. MODERN BROTHERHOOD OF AMERICA.

Supreme Court of Missouri, Division No. 1.

March 1, 1910.

COURTS (§ 231) — APPELLATE JURISDICTION — CONSTITUTIONALITY OF STATUTE — WHO MAY QUESTION.

The objection that Rev. St. 1899, § 7896 (Ann. St. 1906, p. 3750), providing that in all suits on policies of insurance on life issued "to a citizen of this state it shall be no defense that the insured committed suicide," discriminates in favor of resident policy holders and against non-residents, in violation of the state and federal Constitutions, can be raised so as to confer appellate jurisdiction on the Supreme Court rather than the Court of Appeals only by a person alleged to be affected by such discrimination, and not by the company issuing the policy.

Appeal from Circuit Court, Warren County; James D. Barnett, Judge.

Action by F. A. Ordelheide, administrator of the estate of Walter L. Leek, deceased, against the Modern Brotherhood of America on a policy of insurance. Plaintiff had judgment, and defendant appeals. Appeal transferred to the St. Louis Court of Appeals.

Ball & Sparrow, for appellant. Emil Roehrig, for respondent.

LAMM, P. J.

Walter L. Leek died by his own hand, unmarried and intestate on June 14, 1905, then (and always since his birth) a citizen of Warren county, Mo. Ordelheide was appointed administrator of his estate, qualified, and took upon himself the burden of administration. The defendant is a corporation domiciled in Iowa, and for 10 or 12 years last past did a life insurance business in Missouri under a license from the insurance department permitting it to insure its members as a fraternal, beneficiary association; it having a lodge system, ritual, and the other prerequisites of that form of insurance. In 1903 Leek made written application for membership and a benefit certificate in defendant, in which application he agreed that in the event of his death by suicide, whether sane or insane, any benefit certificate issued by said fraternity should be void. Presently his application was accepted, and he became a member of the local lodge and defendant issued to him a beneficiary certificate for $1,000. He remained a member in good standing to the day of his death. The policy, inter alia, contained this provision: "If the holder of this certificate shall be expelled or suspended by the lodge * * * or shall die in consequence of a duel, or by his own hand, whether sane or insane. * * * then this certificate shall be null and void," etc. The provision designating the beneficiary in case of death is in part as follows: "The Modern Brotherhood of America issues to Walter L. Leek of Warrentown, county of Warren, state of Missouri, this membership certificate, which entitles him to membership in said fraternity, and in case of the death of said member while in good standing, permits his beneficiary to participate in the mortuary fund to the amount of one full assessment on all members in good standing in the fraternity not to exceed one thousand dollars, which shall be paid to legal representatives, related to the member as ____ within ninety days after said satisfactory proofs of such member's death shall have been furnished by the beneficiary to the Board of Directors at Mason City, Iowa." Due death proofs were made, defendant refused to pay, and Ordelheide, as administrator, sued on the policy in the Warren circuit court. Judgment going for $1,076.25, defendant appeals here.

The question of jurisdiction confronts us in limine and therefore bespeaks preliminary disposition. Attending to that question, we observe: The theory of the petition is that defendant is an old-line life insurance company. It is contended in plaintiff's brief that the omission to name a beneficiary in the policy of the class of blood kin or relationship by marriage, etc., as provided in sections 1408, 1410, Rev. St. 1899 (Ann. St. 1906, pp. 1111, 1112), and by the use of the term "legal representatives" in the policy defendant thereby is put outside of the pale of fraternal beneficiary associations, although it complies in other respects with the statutory designation of such associations. Contra defendant by answer defends on the theory it is a fraternal benefit association, that by virtue of such fact it may contract against liability in cases of felo de se, and therefore is not amenable to the statutory limitations on the powers of old-line companies to contract against self-destruction — that statute reading (section 7896, Rev. St. [Ann. St. 1906, p. 3750]): "In all suits upon policies of insurance on life hereafter issued by any company doing business in this state, to a citizen of this state, it shall be no defense that the insured committed suicide, unless it shall be shown to the satisfaction of the court or jury trying the cause, that the insured contemplated suicide at the time he made his application for the policy, and any stipulation in the policy to the contrary shall be void."

However, there is another defense interposed by way of casting an anchor to the windward, viz., the unconstitutionality of section 7896. The cause was tried without a jury or instructions. By briefs the constitutional point is developed as follows: Assuming (for argument's sake) that defendant is not a fraternal beneficiary association, but is an old-line life insurance company, yet, as the policy contains a provision making the insurance void in case of suicide, such policy provision should be enforced in spite of the statute, because that statute is void, in that it discriminates in favor of policy holders and beneficiaries who are citizens of this state and against those who are not citizens (although within the jurisdiction of the state), thereby violating named provisions of the state and federal Constitutions. On this contention hinges our jurisdiction and we think we have none. This because: A grave provision of the Constitution may not be invoked by every litigant at every turn to cause an act of the Legislature to perish by judicial construction, or to take away or confer jurisdiction. Not only may the right to raise a constitutional point be waived, but such point may be injected untimely, and (what is more to the point) it may be raised by a litigant not entitled to raise it at all or invoke a given constitutional safeguard on the record presented to the court. Said Owen Glendower (sweepingly):

"I can call spirits from the vasty deep."

Retorted young Henry Percy, surnamed Hotspur (full of critical doubt):

"Why, so can I, and so can any man; But will they come when you do call for them?"

Somewhat as it was of old in the days of Henry IV, Falstaff, Mortimer, Glendower, Poins, Bardolph, and Hotspur et al., with spirits, so is it now with constitutional points. A litigant may call on the Constitution, but will it come? Whether it will or no depends not a little on whether the litigant has the right to make the call. In deciding that delicate and turning question, stress must be laid on the comity that should exist between the judicial and the legislative departments. Says Cooley (Cooley's Const. Lim. [7th Ed.] p. 228): "The task" (i. e., the task of declaring a statute unconstitutional) "is therefore a delicate one, and only to be entered upon with reluctance and hesitation. It is a solemn act in any case to declare that that body of men to whom the people have committed the sovereign function of making the laws for the commonwealth have deliberately disregarded the limitations imposed upon this delicate authority, and usurped power which the people have...