Reichenbach v. Ellerbe

• Decision Date: 08 May 1893
• Parties: Reichenbach v. Ellerbe, Superintendent of Insurance, Appellant
• Court: Missouri Supreme Court

22 S.W. 573

115 Mo. 588

Reichenbach v. Ellerbe, Superintendent of Insurance, Appellant

Supreme Court of Missouri, First Division

May 8, 1893

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Reversed.

Phillips Stewart, Cunningham & Eliot and Huff & Hereford for appellant.

(1) The court should have given a peremptory instruction to the jury to find for the defendant upon the second count. A verdict should not be allowed to stand where, to reach the same, the jury must have disregarded the clear, consistent evidence of a competent and unimpeached witness, uncontradicted by any evidence in the case. Lionberger v. Pohlman, 16 Mo.App. 392; Borgraefe v. Knights of Honor, 22 Mo.App. 127; Henderson v. Railroad, 36 Mo.App. 109; Spohn v. Railroad, 87 Mo. 74; Rosecrans v Railroad, 83 Mo. 678; Morgan v. Durffee, 69 Mo. 469. (2) The verdict of the jury upon the second count was against the evidence and manifestly the result of prejudice or of disregard of the instruction of the court. Friesz v. Fallon, 24 Mo.App. 439; Garrett v. Greenwell, 92 Mo. 120; Caruth v. Richeson, 96 Mo. 186; Long v. Moon, 107 Mo. 334. (3) In a case of the present character the erroneous admission of improper evidence, such as that addressed to the question of waiver of prompt payment of dues, is not remedied by a subsequent instruction excluding it from consideration. The jury is confused and prejudiced irrevocably. Thompson on Trials, secs. 2262c, 2273 and notes; Batterson v. Vogel, 10 Mo.App. 235; Evans v. Railroad, 16 Mo.App. 525. (4) Instruction numbered 6, asked for defendant, should have been given. Heffernan v. Supreme Council, 40 Mo.App. 605. (5) Where the facts have been fully developed at the trial below, and the court should have directed a verdict, the cause should not be remanded for a retrial, but judgment should be entered in the appellate court for the proper party.

Martin & Bass and H. A. Loevy for respondent.

(1) The only evidence as to giving of the notice of the assessment was Farris, appellant's cashier, who says he mailed notices on that date, not because he knows, but because it was his custom to mail notices on the twentieth of each month. This was insufficient to work a forfeiture. Borgraefe Case, 22 Mo.App. 147. (2) Deems testifies to conversation with deceased a week before his death, wherein the latter admitted having received notice of assessment made August 20, 1888, and then due, which evidence has but little weight; the declarant being dead and not able to contradict or explain. Underwood v. Underwood, 48 Mo. 527; Johnson v. Quarles, 46 Mo. 423. (3) Besides, such evidence is incompetent as between the insurer and beneficiary. Niblack Benefit Society, sec. 377; 1 Greenlief on Evidence, sec. 171. (4) Respondent testifies that she did not know of or find any notice of assessment 745-745 1/2. This question was, then, one for the jury. Siebert v. Chosen Friends, 23 Mo.App. 274, a parallel case on this point; Gibson Case, supra. (5) The verdict was not the result of passion or prejudice. Judge Dillon, who saw and heard both parties testify, refused to find that notice was given, and this court will not so find. Siebert v. Chosen Friends, 23 Mo.App. 274; Gibson v. Zimmerman, 27 Mo.App. 96, 97; Miller v. Boot and Shoe Co., 26 Mo.App. 64. A verdict of a jury may be contrary to uncontradicted affirmative evidence, but that will not be sufficient ground for reversal in an action at law. Votga v. Pelikan, 15 Mo.App. 471. Especially where there is no preponderance in favor of the party having the burden of proof. Vautrain v. Railroad, 78 Mo. 44; Rosecrans v. Railroad, 88 Mo. 678; Gregory v. Chambers, 78 Mo. 274.

Brace J. Barclay, J., absent.

OPINION

Brace, J.

This is an appeal from a judgment of the circuit court of St. Louis for $ 2,000 and interest, in favor of the plaintiff against the United Masonic Benefit Association of Missouri, successor of the Masonic Mutual Benefit Society of Missouri, on a certificate of membership, number 2499, issued by said society on the second day of January, 1883, to William Reichenbach, the deceased husband of the plaintiff, for her benefit, by the terms of which, under the by-laws of the association, she was to become entitled to that amount upon the death of her said husband. "Upon condition, however, that if the said William Reichenbach shall fail to pay any assessment when the same becomes due and payable by him according to the by-laws of this society and the terms of this certificate, then this contract and agreement shall be null and void and of no effect whatever, and the said Wm. Reichenbach and the beneficiary therein shall forfeit all rights accruing under this certificate."

The certificate was issued by the society and accepted by the holder and beneficiary upon the following express conditions and agreements also therein set out: "First . That the same is issued and accepted subject to the provisions of the articles of association and by-laws. Second. A printed or written notice directed to the address of each member as it may appear at the time on the books of the society and deposited in the post office or delivered by an agent of the society shall be deemed sufficient notice. Third. Due notice must be given to the society by each member of his change of residence or post office address when such change occurs."

The defense was forfeiture of the benefits of the certificate by failure to pay an assessment.

It appeared from the evidence that on the eleventh of July, 1888, an assessment for death losses was duly made under the by-laws of the association upon the members to which certificate number 2499 belonged; that notices of this assessment were made out and authenticated by the proper officers of the association, and in the form required by the by-laws, for all the members of the class to which this certificate belonged; that they were addressed to such members severally according to their post office address as it appeared upon the books of the association, in which books the name and post office address of the said William Reichenbach appeared; that such notices and the envelopes in which they were contained were compared and checked with the list in the book in a double form for the purpose of avoiding errors; and on the twentieth day of August, 1888, were duly stamped and posted in the United States post office at St. Louis.

The by-laws in respect of such notices provided that: "At the close of every month, or as soon as shall be deemed advisable, the secretary shall send by mail, to the post-office address of each member of the association in which death or deaths have occurred during the month, a notice or notices giving the name of the deceased member or members, and the lodge to which he or they belonged, and the assessment due from each member to whom such notice is sent; or the secretary may employ a member of the association, in any town or city where members reside, who shall serve such notice or notices, either personally or by mail, or by giving verbal notice of such assessment; which notice or notices, sent, served or given, shall be deemed and taken to be lawful and sufficient notice for the payment of the assessments so called for and required; and any member failing to pay such assessments within twenty days after such notices have been served upon, sent or given to him, shall forfeit his membership in the association, and all benefits and interest therefrom and therein, provided, that any payment of assessment after such forfeiture, or any notice to pay, or subsequent assessment by the association, shall not have the effect to restore the person notified or paying, to membership or to any rights under his certificate, until his application for reinstatement shall be presented to and approved by the executive committee."

"Section 5. Any member having forfeited his membership, as above provided in section 2, may be reinstated and restored to membership only upon such payments, terms, and conditions, as may be adopted and prescribed by the executive committee."

Under the by-laws, and by the terms of the notice, this assessment became due and payable on the ninth of September, 1888. That day, however, being a Sunday, the custom of the association permitted the assessment to be paid on the Monday following,...