Ordelheide v. Modern Brotherhood of America
| Decision Date | 15 July 1911 |
| Citation | 139 S.W. 269,158 Mo.App. 677 |
| Parties | F. A. ORDELHEIDE, Administrator, Respondent, v. MODERN BROTHERHOOD OF AMERICA, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Warren County Circuit Court.--Hon. James D. Barnett Judge.
Judgment affirmed and case certified to Supreme Court.
Ball & Sparrow for appellant.
(1) Our insistence is that the portions of section 1408, R. S. Mo 1899 and of section 3 of the laws of Iowa merely designating the persons to whom benefit certificates may be made payable are no part of the definition of a fraternal benefit society under either statute. To determine whether or not appellant is a fraternal benefit society the only inquiries to be made are, whether it is a corporation or voluntary association organized and carried on for the sole benefit of its members, and not for profit; whether it has a lodge system with ritualistic form of work and representative form of government; whether provision is made for the payment of benefits in case of death, or in case of sickness, temporary or permanent physical disability, either as a result of disease, accident or old age, and whether the funds from which benefits and expenses are paid are derived from assessments or dues collected from its members. If all of these things are found to be true then appellant is a fraternal benefit society. Westerman v. K. of P., 196 Mo. 670; Loyd v. Woodman, 113 Mo.App. 19; Armstrong v. Modern Brotherhood, 132 Mo.App. 171. Being a fraternal benefit society, therefore, and it being admitted that Leek committed suicide, respondent cannot recover in this action. Morton v. Royal Tribe of Jos., 93 Mo.App. 78; Brasfield v. M. W. A., 88 Mo.App. 208; Hudnall v. M. W. A., 103 Mo.App. 356; Shotliff v. M. W. A., 100 Mo.App. 138. (2) The very object and purpose of fraternal insurance is to provide a support for the family of the insured. The words "legal representatives," when used in a benefit certificate of this kind, should, therefore, not be given a construction which will thwart the very purpose of the law. That the words "legal representatives" have lost much of their original distinctive force and are now used to describe either executor and administrator, heirs or descendants, and next of kin or distributees, is abundantly supported by the authorities. Warnecke v. Lembea, 71 Ill. 91; In re Cordrad's Estate, 89, Ia. 396; Schultz v. Ins. Co., 59 Minn. 309; Allen v. Stovall, 94 Tex. 618; Masonic Relief Assn. v. McAveley, 2 Mackey, 70; Leonard v. Harvey, 71 N.Y.S. 546; Robinson v. Hurst, 78 Md. 59; Hodge's Appeal, 8 W. N. C. 209; In re Riesenberg, 116 Mo.App. 308; Elstroth v. Young, 83 Mo.App. 253; Ewing v. Shannahan, 113 Mo. 188; Loos, Guardian v. Life Ins. Co., 41 Mo. 538. (3) Leek was the certificate holder, and, because of section 1418 Revised Statutes 1899 respondent (his administrator) would be compelled to pay the amount of said certificate to the very persons named in section 1408, as beneficiaries, viz., to Leek's heirs. This proposition is well established by the following authorities: Grand Lodge A. O. U. W. v. Dister, 77 Mo.App. 608; Beall v. Graham, 125 Mo.App. 38; Rose v. Wortham, 95 Tenn. 505; Harvey v. Harrison, 89 Tenn. 470. (4) Conceding, for the sake of argument, that the charter powers of the appellant enabled it to write policies in Iowa which are ultra vires its Missouri authority, can this fact be invoked by respondent to wrest from appellant a substantial defense in this action? It would certainly not lie in appellant's mouth to make the same plea in this case in order to avoid its liability upon the policy. City v. Davidson, 102 Mo. 149; Cass Co. v. Ins. Co., 188 Mo. 1. Since estoppels are mutual, the beneficiaries under the certificate cannot be heard to allege that the appellant is an outlaw company. Herman on Estoppels, etc., par. 719, p. 848.
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. Section 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 section 1408, R. S. 1899, because of its failure to comply with the terms of sections 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) Appellant is not a fraternal beneficiary association as defined by the laws of the State of Missouri. R. S. 1899, secs. 1408 to 1410 inc.; State ex rel. v. O'rear, 144 Mo. 157; Baltzell v. Modern Woodmen, 98 Mo.App. 153; Dennis v. M. B. A., 119 Mo.App. 210; Bacon, Ben. Societies, sec. 399; Herzberg v. M. B. A. , 110 Mo.App. 328; Bransfield v. Maccabees, 92 Mo.App. 102; Brasfield v. M. W. A., 88 Mo. App., 208; McDonald v. Life Ass'n., 154 Mo. 618; Aloe v. Life Ass'n., 164 Mo. 675; Logan v. Fidelity & Casualty Co., 146 Mo. 114. (4) 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 inc.; Herzberg v. M. B. A., 110 Mo.App. 328; State ex rel. v. O'rear, 144 Mo. 129; Toomey v. Supreme Lodge K. of P., 147 Mo. 129. (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 Cyclopedia of Law and Proc., p. 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. 25 Cyclopedia, p. 177; Loos v. Life Ins. Co., 41 Mo. 538.
This is an action brought by an administrator to recover the amount, with interest, of what plaintiff calls a life insurance policy and defendant calls a benefit certificate issued by a fraternal benefit society, for one thousand dollars. The plaintiff had judgment and defendant has appealed. The policy or certificate was issued to plaintiff's intestate, Walter L. Leek, and was payable to his "legal representatives, related to the member as . . ." Defendant admits all matters essential to a recovery by the plaintiff and relies solely for its defense upon the fact that the insured committed suicide, there being a stipulation in the application made by the insured, as well as in the by-laws of the defendant at the time the certificate was issued, that in that event the certificate would be void. It is conceded that the deceased came to his death by suicide, but there is no showing that he contemplated suicide at the time he made his application. In the absence of such showing, section 6945 of the Revised Statutes 1909, makes the defense of suicide unavailable to the defendant, unless, as it contends, it is, as to the certificate here sued upon, entitled to claim the exemption accorded to a fraternal beneficiary association by section 7109, which provides, among other things, that
The defendant is an Iowa corporation, doing business in this state by certificate from the secretary of state, as provided by our statute. By the laws of Iowa, under which defendant was organized, defendant is authorized to issue benefit certificates to the "husband, wife, relative, legal representative, heir or legatee of such member." The insured in his application for the certificate sued upon designated, as the beneficiary, his "legal representatives." The certificate states that its amount "shall be paid to legal representatives, related to the member as . . ." It will thus be noted that not only is the defendant authorized by the laws of Iowa to issue benefit certificates to a class not authorized by our law, i. e. legal representatives, but in this case it exercised that power within the confines of this state by making the certificate here sued upon payable to the "legal representatives" of the insured. The only question is whether, having issued a certificate not authorized by our statute, it can still claim the exemption which our statute grants as a special privilege to those doing the kind of business prescribed. We have concluded that it cannot. There are different classes of insurers under our statutes. Some have the privilege of doing a more general business than others and are therefore more heavily burdened by having read into every policy they issue section 6945 of the Revised Statutes of 1909, which forbids the defense of suicide except upon the showing prescribed. Others, fraternal beneficiary associations, are allowed to do only a restricted insurance business, being limited to issuing policies or certificates to "the families, heirs, blood relatives, affianced husband or affianced wife of, or to persons dependent upon the member." Because of this and other limitations, they are specially privileged, by being exempted from the general insurance laws. If their operations are not so limited, then they are not so privileged. It is only "such associations"--i. e. those of the character and observing the limitations...
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