Osburn v. Court of Honor

• Decision Date: 10 November 1910
• Citation: 152 Mo. App. 652,133 S.W. 87
• Parties: OSBURN et al. v. COURT OF HONOR.
• Court: Missouri Court of Appeals

133 S.W. 87

152 Mo. A. 652

OSBURN et al. v. COURT OF HONOR.

Springfield Court of Appeals. Missouri.

November 10, 1910.

Rehearing Denied January 9, 1911.

1. ESTOPPEL (§ 110)—PLEADING.

An equitable estoppel is not available unless pleaded, and facts relied upon as an estoppel in pais must be specially pleaded, or evidence of them cannot be received.

2. INSURANCE (§ 815)—ACTION ON BENEFIT CERTIFICATE—PLEADING ESTOPPEL.

In an action on a mutual benefit insurance certificate, the answer of defendant "that the death proofs furnished by claimants showed the cause of death to have been suicide," followed by the statement "that the cause of the death was in fact suicide," does not sufficiently plead estoppel of plaintiffs to prove that death was not due to suicide.

3. ESTOPPEL (§ 52)—IN PAIS—ELEMENTS.

In order to constitute an estoppel, it must be shown: That the parties have done some act or made a declaration inconsistent with the truth for the purpose of securing the action of the other parties; that the parties alleging the estoppel were ignorant of the truth and relied upon such acts and declarations; and that injury would result to them by the denial.

4. ESTOPPEL (§ 52)—POLICY OF THE LAW.

The doctrine of estoppel rests upon the principle that a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth; its controlling principle being to prevent fraud and promote justice. But it is the policy of the law to guard estoppels strictly because estoppels may exclude the truth.

5. EVIDENCE (§ 265)—BENEFIT INSURANCE— STATEMENTS OR ADMISSIONS — BINDING FORCE.

Statements or admissions by claimants under a mutual benefit insurance certificate, as to the cause of the death of assured, are competent prima facie evidence against them, in an action on the policy, where the issue was the cause of death, but are not conclusive.

Appeal from Circuit Court, Jasper County; Henry L. Bright, Judge.

Action by Edna Osburn and another against Court of Honor. From a judgment of involuntary nonsuit, plaintiffs appeal. Reversed and remanded.

This is an appeal from a judgment upon an involuntary nonsuit. The appellants are sisters of Cora F. Bender, deceased. The respondent is a fraternal benefit society of which Cora F. Bender was a duly accredited member and in which she carried a certificate of $500 fraternal life insurance, made payable to the appellants at her death subject to certain conditions. The provision in said certificate material to this controversy is as follows: "I understand and agree that if I commit suicide, whether sane or insane, voluntary or involuntary, there shall be payable to the beneficiaries entitled thereto, five per cent. of the face of the certificate for each year I shall have been continuously a member of the society." This benefit certificate was delivered on the 17th day of March 1908, and on the 5th or 6th of October of the same year Cora F. Bender died. At the close of all the evidence, the court instructed the jury that under the law and the evidence the verdict must be for the defendant. The plaintiffs announced the taking of a nonsuit with leave to file a motion to set it aside. Judgment was entered for the defendant. A motion to set aside the nonsuit was duly filed and overruled, whereupon application was made for and an appeal was granted to this court.

The plaintiffs' petition is, in substance, as follows: The defendant is a corporation organized under the laws of the state of Illinois. That on the 25th day of February, 1908, the defendant delivered to Cora F. Bender a certificate of life insurance, providing that said Cora F. Bender should be entitled to participate in the benefit fund of class A of said society to the amount of $500, and providing further that said sum upon satisfactory proof of the death of said member should be paid to Edna Osburn and May Davidson, $250 to each of them. That on the 5th day of October, 1908, said Cora F. Bender departed this life. That satisfactory proofs of her death have been made to the defendant, and that plaintiffs and the said Cora F. Bender have in all other respects complied with the terms of said contract of insurance, and that payment has been demanded by plaintiffs and refused.

The defendant's answer is substantially as follows: That it is a corporation organized and existing under and by virtue of the laws of the state of Illinois, but that it is not authorized to do a general insurance business. That on the 25th day of February, 1908, defendant issued to Cora F. Bender a benefit certificate subject to all the terms and conditions. That Cora F. Bender came to her death on or about the 5th day of October, 1908, and that it tendered to the plaintiffs the full amount due under the terms of said certificate of insurance. That defendant is a fraternal beneficiary society organized under the laws of the state of Illinois relating to fraternal beneficiary societies, and that it is a fraternal beneficiary society as defined by the laws of the state of Missouri. That it was a part of the contract between the defendant and Cora F. Bender that if she should commit suicide, whether sane or insane, voluntary or involuntary, there should be payable to the beneficiaries entitled thereto "five per cent. of the face of the certificate for each year she shall have been continuously a member of the society." That the death proofs furnished by the claimants for the defendant company's action upon the claim made by said beneficiaries shows the cause of death to have been suicide and that the cause of said death was in fact suicide. That the amount due under said certificate of insurance is the sum of $7.29 to each of the beneficiaries, and that said amount has been allowed by the managing board of said society and tendered to the said beneficiaries long before the commencement of this action.

The reply was a general denial.

Shortly after the death of Cora F. Bender proofs of death were furnished by H. H. Smith, the clerk of the local Court of Honor, on blanks furnished by the defendant company. These proofs of death showed that Miss Bender came to her death from suicide. Among other things contained in the proofs of death was the verdict of the jury of the coroner who held the post mortem examination, in the following language: "I, E. H. Baird, coroner, find that Cora F. Bender came to her death on October 6, 1908, at Carthage, Missouri, from strychnine poisoning, said poison taken with her own hand with suicidal intent." Among other proofs of death furnished was blank A, containing the affidavit of H. H. Smith as to the death of Cora F. Bender. Also, blank C, containing an affidavit of David Wise as to the time and place of Miss Bender's death, with the further statement that the immediate cause of her death was strychnine poisoning; that said David Wise was a practicing physician in good standing and had been for 14 years. There was also the affidavit of May Davidson, one of the appellants, among the proofs of death, in which she stated the time and place of the death, and "that death resulted from suicide," and in which she made claim as a sister for the sum of $250 due her as beneficiary under the benefit certificate. Also, "I further state that blanks A, B, and C of the said Court of Honor filed with this claim have been executed at my special instance and request, and the statements...