Ordelheide v. Modern Brotherhood of America

• Decision Date: 03 July 1916
• Parties: F. A. ORDELHEIDE, Administrator of Estate of WALTER L. LEEK, v. MODERN BROTHERHOOD OF AMERICA, Appellant
• Court: Missouri Supreme Court

187 S.W. 1193

268 Mo. 339

F. A. ORDELHEIDE, Administrator of Estate of WALTER L. LEEK, v. MODERN BROTHERHOOD OF AMERICA, Appellant

Supreme Court of Missouri, First Division

July 3, 1916

Appeal from Warren Circuit Court. -- Hon. James D. Barnett, Judge.

Affirmed.

Sparrow & Page for appellant.

(1) That part of Sec. 1408, R. S. 1899, designating the class of persons to whom benefit certificates may be made payable is no part of the definition or description of a fraternal benefit society. Westerman v. Supreme Lodge, 196 Mo 670; Tice v. Supreme Lodge, 123 Mo.App. 85, 204 Mo 354; Armstrong v. Modern Brotherhood, 132 Mo.App 171. (2) When Leek had his benefit certificate made payable to "legal representatives related to the member as . . . within 90 days" after proof of death, he meant his heirs or next of kin. R. S. 1899, sec. 1411. (3) The dissenting opinion in this case was concurred in by Division No. 2 of this court, in the case of Armstrong v. Modern Brotherhood, 245 Mo. 158. This court, also, in the Armstrong case, overruled the decision of the Kansas City Court of Appeals in the case of Dennis v. Modern Brotherhood of America, 119 Mo.App. 210, so confidently relied upon by respondent.

Emil Roehrig for respondent.

(1) The defense of suicide is not available where it does not appear that the deceased contemplated suicide at the time of taking out the policy of insurance. Sec. 7896, R. S. 1899. (2) This appellant has failed to avail itself of the benefits and exemptions accorded fraternal beneficiary associations which come within the descriptions of such associations defined by Sec. 1408, R. S. 1899, because of its failure to comply with the terms of Sec. 1408-1410, R. S. 1899. Dennis v. M. B. A., 119 Mo.App. 210; Pauley v. Modern Woodmen, 113 Mo.App. 473; Herzberg v. M. B. A., 110 Mo.App. 328; Baltzell v. Modern Woodmen, 98 Mo.App. 153; Brasfield v. Modern Woodmen, 88 Mo.App. 208. (3) The contract made between appellant and the respondent's intestate Walter L. Leek, is not such a contract as is intended to be covered by and protected by the provisions of the Missouri law relating to fraternal beneficiary associations. R. S. 1899, secs. 1408-1410; Herzberg v. M. B. A., 110 Mo.App. 328; State ex rel. v. Orear, 144 Mo. 129; Toomey v. Supreme Lodge, 147 Mo. 129. (4) It is the contract in a given case that determines the character and legal status of the parties thereto, and in the case at bar the contract alone determines the kind of insurance written by the appellant insurance company, its name or classification by the Insurance Department being immaterial. Aloe v. Fidelity Mut. Life Assn., 164 Mo. 686; McDonald v. Banker's Life Assn., 154 Mo. 628; Baltzell v. M. W. A., 98 Mo.App. 159; Herzberg v. M. B. A., 110 Mo.App. 333; Logan v. Fidel. & Cas. Co., 146 Mo. 115; Westerman v. Supreme Lodge, 196 Mo. 741. (5) The term "legal representative" in the common use of the words and in its ordinary meaning and signification is a term equivalent to "executor" or "administrator." 25 Cyc. 177; Herzberg v. Modern Brotherhood, 110 Mo.App. 328. The meaning of the term in a particular case depends upon and is controlled by the context and the intent with which it is used, as well as by the existing state of things and the relative situation of the parties to be affected. Loos v. Life Ins. Co., 41 Mo. 538.

GRAVES P. J. Woodson, J., absent.

OPINION

GRAVES, P. J.

This is the second appearance of this case in this court. It was first here upon the theory that a constitutional question was involved. [Ordelheide, Admr., v. Modern Brotherhood of America, 226 Mo. 203, 125 S.W. 1105.] We held that there was no constitutional question involved and certified the case to the St. Louis Court of Appeals. About the same time we likewise recertified the case of Dennis v. Modern Brotherhood of America, to the Kansas City Court of Appeals. [Dennis v. Modern Brotherhood, 231 Mo. 211, 132 S.W. 698.]

When the Dennis case, supra, was pending here it was suggested that there were adverse views upon the question involved by the St. Louis and Kansas City Court of Appeals. [Dennis v. Modern Brotherhood of America, supra.] These differences seem to have been at least partially settled by the opinion of the majority of the St. Louis Court of Appeals in the instant case, for that opinion cites approvingly the Kansas City Court of Appeals opinions. Judge Reynolds, however, dissents, and certifies.

The contention is sharply drawn. Plaintiff contends that whilst defendant was chartered in Iowa as a fraternal beneficiary association, and whilst it was licensed in Missouri, as such, yet the policy actually issued was an old-line insurance policy, and the statute exempting it from our general statute as to suicides has no bearing. Defendant contends contra.

To make the issue plainer, the plaintiff contends that under the laws of Missouri pertaining to fraternal beneficiary associations, a certificate payable to the "legal representatives" could not be issued, and if so issued it then becomes an insurance policy within the purview of our general insurance laws, and suicide is no defense unless it be shown that the insured contemplated suicide at the time of taking out the certificate or policy. In the record there was no evidence tending to show that suicide was contemplated by Leek when his certificate was issued. The record shows plaintiff entitled to the full amount, if entitled to recover at all.

The judgment of the trial court was for plaintiff for the $ 1000 and some accrued interest, and the majority opinion of the Court of Appeals by Caulfield, J., affirms this judgment. The case is here in the constitutional way.

The facts of the case are few and simple, and might well be gathered from Ordelheide, Admr., v. Modern Brotherhood of America, 226 Mo. 203, 125 S.W. 1105, supra. A restatement will take but short space, and we will therefore restate the facts.

The defendant is chartered in the State of Iowa as a fraternal beneficiary association and for some years prior to, and at the time of, issuing a beneficiary certificate to one Walter L. Leek, of Missouri, in 1903, was licensed in Missouri as a fraternal beneficiary association. The certificate was for the sum of one thousand dollars, as thus expressed therein:

"The Modern Brotherhood of America issues to Walter L. Leek of Warrenton, 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."

The certificate contains the usual suicide clause found in most certificates issued by associations of kindred character. Suicide, whilst sane or insane, voided the certificate. Leek committed suicide and his administrator brings this suit.

I. In our judgment the majority opinion of the St. Louis Court of Appeals, which accords with the Kansas City Court of Appeals upon this question, is right. Our statute, Revised Statutes 1909, section 7109, contains this provision:

"Payments of death benefits shall be to the families, heirs, blood relatives, affianced husband or affianced wife of, or to persons dependent upon, the member."

This clause was likewise in the statute at the date of the issuance of the certificate sued upon. The same section contains an exemption clause, in this language:

"Such association shall be governed by this article, and shall be exempt from the provisions of the insurance laws of this State, and shall not pay a corporation or other tax, and no law hereafter passed shall apply to them unless they be expressly designated therein."

This exemption clause was likewise in the statute at the issuance of the certificate involved here. In some particulars the old statute (Laws 1897, p. 132; Sec. 1408, Revised Statutes 1899) was amended in 1909 (Laws 1909, p. 371) but not so as to touch the question at issue in the instant case. The last clause is one purely of exemption. In Schmidt v. Foresters, 228 Mo. l. c. 675, we practically so said. We then used this language in discussing the Act of 1897:

"The Act of 1897 simply exempts fraternal beneficiary associations from the general insurance laws. By thus exempting them the Legislature recognized that but for the exemption, their contracts would be governed by the general laws, for if not there would be no reason for the exemption.

"Nor is it unreasonable to say, as was said in the Jarman case ( Indemnity Co. v. Jarman, 187 U.S. 197, 47 L.Ed. 139 23 S.Ct. 108), that the defendant in the case at bar cannot claim the benefits of an exemption provided by a law, until such time as it places itself in a position to claim the benefits of the law. It cannot claim the benefits of the law merely because its contracts are of the character mentioned in the law, but to claim the exemption given, it must come under the law, and makes its contracts under the law. If it does that, then the law is read into and becomes a part of the contract, but until it does do that the general law is and must be read into each and every one of its contracts made with a citizen of Missouri. Not only so, but if such general law once becomes a material constituent part of the contract, it cannot be eliminated therefrom by the subsequent act of the defendant. And we are of opinion that the suicide statute is substantial...