Roberts v. Modern Woodmen of America

• Decision Date: 05 November 1908
• Citation: 113 S.W. 726,133 Mo. App. 207
• Parties: ROBERTS v. MODERN WOODMEN OF AMERICA.
• Court: Missouri Court of Appeals

113 S.W. 726

133 Mo. App. 207

ROBERTS v. MODERN WOODMEN OF AMERICA.

St. Louis Court of Appeals. Missouri.

November 5, 1908.

1. INSURANCE (§ 812) — ACTIONS ON POLICIES — TIME WITHIN WHICH ACTION MUST BE BROUGHT — VALIDITY OF PROVISIONS.

Under Rev. St. 1899, § 899 (Ann. St. 1906, p. 832), making void all parts of a contract limiting the time in which an action may be instituted, the court in an action on a beneficiary certificate properly struck out an affirmative defense alleging in bar of the action that it was not commenced within one year after insured's death, as required by the certificate.

2. INSURANCE (§ 125) — THE CONTRACT IN GENERAL — WHAT LAW GOVERNS — PLACE OF CONTRACT.

Where a beneficiary association and insured were both residents of the state of Illinois at the time the application for insurance was made, and the certificate was issued and delivered, the contract was an Illinois contract governed by the laws of that state.

3. INSURANCE (§ 125) — ACTIONS ON POLICIES — TIME WITHIN WHICH ACTION MUST BE BROUGHT.

Where, in an action on a beneficiary certificate, defendant set up that the contract was made in Illinois, and that under the laws of that state a clause in the certificate, requiring suit thereon to be brought within one year after insured's death, was valid, and that the action was not so brought, it was entitled to show in bar of the action that the stipulation, though invalid under the laws of Missouri, was valid under the laws of Illinois.

Appeal from Circuit Court, Monroe County; David H. Eby, Judge.

Action by Matilda Roberts, etc., against the Modern Woodmen of America. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Benj. D. Smith and Tunnell & Hart, for appellant. Jas. H. Whitecotton and W. W. Barnes, for respondent.

BLAND, P. J.

The defendant is a fraternal beneficiary association incorporated under the laws of the state of Illinois, and is authorized to do business as a fraternal beneficiary association in the state of Missouri. Its chief business office is at Rock Island, in the state of Illinois. On February 23, 1894, defendant issued and delivered to William White, then residing in the state of Illinois, and described as a member of Burnside Camp, No. 2163, its certificate of insurance, insuring the life of said White in a sum not to exceed $2,000, payable on his death to Matilda White, the wife of the insured. White subsequently withdrew from Burnside Camp, No. 2163, and became a member of Tulip Camp, No. 4791, located in Monroe county, Mo., to which county he had removed with his family. On March 4, 1904, White was accidentally killed. Timely notice of his death was given defendant and proper proofs of loss were furnished, but defendant denied liability on the certificate of insurance, for the reason White had failed to pay an assessment, and refused to pay the loss.

The action is on the certificate, brought by the beneficiary (who, since the death of her former husband White, has intermarried with J. T. Roberts), to recover the sum of $2,000, with legal interest. The action was commenced in the Monroe circuit court July 22, 1905, more than a year after the death of the insured. On December 18, 1906, an amended petition was filed, stating facts sufficient to entitle plaintiff to recover. On the same day defendant filed its answer in which several affirmative defenses were set up. The third of these defenses alleges that the by-laws of the association provide that "no action shall or can be maintained on this certificate unless brought within one year from the date of the death of said neighbor," and that the certificate sued on contained said provision, and alleges...