Robertson v. Security Benefit Assn.

• Decision Date: 01 April 1938
• Docket Number: No. 35030.,35030.
• Citation: 114 S.W.2d 1009
• Parties: JOHN F. ROBERTSON, Defendant in Error, v. THE SECURITY BENEFIT ASSOCIATION, Plaintiff in Error.
• Court: Missouri Supreme Court

114 S.W.2d 1009

JOHN F. ROBERTSON, Defendant in Error, v. THE SECURITY BENEFIT ASSOCIATION, Plaintiff in Error.

No. 35030.

Supreme Court of Missouri.

Division One, April 1, 1938.

Appeal from Pettis Circuit Court. — Hon. Dimmitt Hoffman, Judge.

REVERSED.

A.W. Fulton and Lamm & Barnett for plaintiff in error.

(1) A constitutional question is presented, giving the Supreme Court jurisdiction. Sec. 1, Art. IV, U.S. Const.; Rechow v. Bankers Life Co., 335 Mo. 668, 73 S.W. (2d) 794; Hawkins v. Glen, 131 U.S. 319; Sanger v. Upton, 91 U.S. 58; Hancock Natl. Bank v. Farnum, 176 U.S. 640, 20 Sup. Ct. 506, 44 L. Ed. 69; Parker v. Stoughton Mill Co., 91 Wis. 174; Modern Woodmen of America v. Mixer, 267 U.S. 544, 45 Sup. Ct. 389; Sov. Camp W.O.W. v. Shelton, 270 U.S. 628, 46 Sup. Ct. 207; Fowler v. Sov. Camp W.O.W., 106 Neb. 192, 183 N.W. 550; Broderick v. Rosner, 294 U.S. 629, 74 L. Ed. 1100, 55 Sup. Ct. 589; 12 C.J. 436; Wiggins Ferry Co. v. C. & A. Ry. Co., 11 Fed. 383, affirmed 108 U.S. 18, 7 Sup. Ct. 614, 27 L. Ed. 636. (2) The Supreme Court of Kansas has held the provision sued upon by plaintiff ultra vires and void and that such provision had been legally repealed. This decision is binding upon the courts of Missouri under the full faith and credit clause of the United States Constitution. Sec. 1, Art. IV, U.S. Const.; Modern Woodmen of America v. Mixer, 267 U.S. 544; Fraternal Union v. Zeigler, 145 Ala. 287, 39 So. 751; Scow v. Supreme Council, 223 Ill. 32, 79 N.E. 42; Steen v. W.W.A., 296 Ill. 104, 129 N.W. 546; Supreme Lodge, K.P. v. Clarke, 88 Ill. App. 600, reversed 189 Ill. 639, 60 N.E. 39; Knights of Maccabees v. Nelson, 77 Kan. 629, 95 Pac. 1052; Eversberg v. Supreme Tent K.M., 33 Tex. Civ. App. 549, 77 S.W. 246; Plunkett v. Supreme Conclave, I.O.H., 105 Va. 643, 55 S.E. 9; Stohr v. San Francisco Musical Fund Soc., 82 Cal. 557, 22 Pac. 1125; Supreme Lodge K.P. v. Knight, 117 Ind. 489, 3 L.R.A. 409, 20 N.E. 479; Pain v. Societe St. Jean Baptiste, 172 Mass. 319, 70 Am. St. Rep. 287, 52 N.E. 502; Richmond v. Supreme Lodge O.M.P., 100 Mo. App. 8, 71 S.W. 736; Duer v. Supreme Council, O.C.F., 21 Tex. Civ. App. 493, 52 S.W. 109; Fugure v. St. Joseph Mut. Soc., 46 Vt. 362; Smith v. Galloway, 1 Q.B. 71; Baker v. Forest City Lodge, I.O.O.F., 28 Ont. 238, 24 Ont. App. 585; Doidge v. Dominion Council, C. & N.R.T.T., 4 Ont. 423; Dey v. Knights & Ladies of Sec., 113 Kan. 86, 213 Pac. 1066; Kirk v. Fraternal Aid Assn., 95 Kan. 707, 149 Pac. 400; Messenheimer v. Fraternal Aid Union, 103 Kan. 552, 175 Pac. 679; Mooney v. Brotherhood of Ry. Trainmen, 162 Minn. 127, 204 N.W. 957; Steen v. M.W.A., 296 Ill. 104, 129 N.E. 546; Dartmouth College v. Woodward, 4 Wheat. 636; Relfe v. Rundle, 103 U.S. 226; Canada So. Ry. Co. v. Gebbard, 109 U.S. 527; McClement v. Supreme Court, I.O.O.F., 222 N.Y. 470, 119 N.E. 99; Hartford Life Ins. Co. v. Ibs, 237 U.S. 662, 35 Sup. Ct. 692; Supreme Council Royal Arcanum v. Green, 237 U.S. 531, 35 Sup. Ct. 724; Sanger v. Upton, 91 U.S. 58; 12 C.J. 471, 473, 478; Rechow v. Bankers Life Co., 335 Mo. 668, 73 S.W. (2d) 794; Hartford Life Ins. Co. v. Barber, 245 U.S. 146, 38 Sup. Ct. 54, 62 L. Ed. 208; Wall v. Bankers Life Co., 208 Iowa, 1053, 223 N.W. 257; Supreme Lodge, N.E.O.P. v. Hines, 82 Conn. 315, 73 Atl. 791; Supreme Colony, U.O.P.F. v. Towne, 87 Conn. 644, 89 Atl. 264; Palmer v. Welch, 132 Ill. 141, 23 N.E. 412; Grimme v. Grimme, 198 Ill. 265, 64 N.E. 1088; Supreme Council A.L.H. v. Green, 71 Md. 263, 17 Am. St. Rep. 527, 17 Atl. 1048; Supreme Council, R.A. v. Brashears, 89 Md. 624, 73 Am. St. Rep. 244, 43 Atl. 866; United Order, G.C. v. Merrick, 165 Mass. 421, 43 N.E. 127; Gibson v. Imperial Council, O.U.F., 168 Mass. 391, 47 N.E. 101; Larkin v. Knights of Columbus, 188 Mass. 22, 73 N.E. 850; Tepper v. Supreme Council, R.A., 59 N.J. Eq. 321, 45 Atl. 111, 61 N.J. Eq. 638, 88 Am. St. Rep. 449, 47 Atl. 460; Bockover v. Life Assn. of America, 77 Va. 85; Valleroy v. Knights of Columbus, 135 Mo. App. 574, 116 S.W. 1131; Smoot v. Bankers Life Assn., 138 Mo. App. 438, 120 S.W. 719; DeVore-Norton v. Brotherhood of Locomotive Firemen, 132 Okla. 130, 270 Pac. 14; M.W.A. v. Crudup, 51 Pac. (2d) 718; Sov. Camp W.O.W. v. Smith, 176 Okla. 545, 56 Pac. (2d) 408; Sov. Camp v. Wirtz, 114 Tex. 471, 268 S.W. 438; Willson v. W.O.W., 64 Pac. (2d) 1064; Korn v. Mutual Assurance Assn., 6 Cranch, 192, 3 L. Ed. 195.

Henry C. Salveter, F.M. Ross and Fred F. Wesner for respondent.

(1) No constitutional question is presented, and therefore the Supreme Court does not have jurisdiction. Early v. Knights of the Maccabees of the World, 48 S.W. (2d) 890; Huckshold v. Rys. Co., 285 Mo. 497; Bolin v. Sovereign Camp, W.O.W., 98 S.W. (2d) 681. (2) The decisions of the Supreme Court of Kansas holding the provisions sued upon by the plaintiff ultra vires and void do not apply because the plaintiff in this case had fully performed all obligations required of him under the contract, and the sum sued upon was due and liquidated, and defendant is estopped to plead ultra vires. Early v. Knights of the Maccabees of the World, 48 S.W. (2d) 890; Marshall v. Knights of the Maccabees of the World, 270 S.W. 418; Ill. Fuel Co. v. Mobile & Ohio Railroad Co., 8 S.W. (2d) 834; Joseph Schlitz Brewing Co. v. Mo. Poultry & Game Co., 287 Mo. 400, 229 S.W. 814; Neff v. Sovereign Camp, W.O.W., 48 S.W. (2d) 564; In re Steel Furniture Co., 18 Fed. (2d) 490. (3) Attempt of defendant to repeal contractual provisions sued upon by subsequent by-laws is invalid under laws of Missouri. Hanna Dessauer v. Supreme Tent, Knights of Maccabees of the World, 278 Mo. 57, 210 S.W. 896: Traughber v. Knights of the Maccabees of the World, 57 S.W. (2d) 783; Dawson v. Knights of the Maccabees of the World, 57 S.W. (2d) 749; Ragsdale v. Brotherhood of Railroad Trainmen, 80 S.W. 280; Roleson v. Grand Lodge Brotherhood of Railroad Trainmen, 84 S.W. (2d) 653. (4) Defendant has no standing to question plaintiff's right to assert fraud in the procurement of the new contract. Secs. 779, 782, Chap. 5, Art. V, R.S. 1929. (5) Statutes of Missouri in 1893, when this certificate was issued, authorized contract containing provisions here sued upon, and defendant is bound thereby. R.S. 1889, sec. 2823; Marshall v. Knights of the Maccabees of the World, 270 S.W. 420; McCoy v. Modern Woodmen of America, 275 S.W. 552; State ex rel. Natl. Council of Knights & Ladies of Security v. Trimble, 239 S.W. 469.

BRADLEY, C.

This cause has been reassigned. Plaintiff sued to recover $512.50, for what is termed old age benefits or endowment, under a certificate of insurance issued to plaintiff by the Knights and Ladies of Security, November 24, 1893. Later, the name of the insurer became The Security Benefit Association. For convenience we refer to plaintiff in error as defendant, and to defendant in error as plaintiff, as styled below.

Defendant was organized under the laws of Kansas and the home office is at Topeka. Plaintiff's original certificate for $2000 was issued in 1893, but in 1895, the amount was reduced to $1000. The certificate provided that when insured reached the age of sixty-two, he would be paid $512.50, whether disabled or not. Plaintiff arrived at the age of sixty-two November 24, 1934, and thereafter sought to collect the $512.50. Payment was refused and this suit followed, resulting in a verdict and judgment for plaintiff in the sum sued for, and defendant brought the cause to this court by writ of error.

We do not deem it necessary to refer at length to the petition. It is alleged that defendant is a Kansas corporation and that plaintiff regularly paid his dues and assessments from the time he became a member until he reached the age of sixty-two, and had in all things performed his part of the insurance contract.

The answer alleges that defendant is a fraternal beneficiary society organized and incorporated under the laws of Kansas, and authorized as such society to do business in Missouri (all of which was established by the evidence). It is admitted in the answer that plaintiff's certificate provided for the payment of the endowment when he reached the age of sixty-two, but defendant alleges that such provision was ultra vires and void. Defendant also pleaded the pertinent parts of its charter, by-laws, and certain statutes and Supreme Court decisions of Kansas, and these were introduced in evidence.

Defendant also alleges that on April 12, 1935, plaintiff made application to it for "a new form of certificate," and that in the application he agreed that "in consideration of the issuance of the new beneficiary certificate applied for under the plan specified above, I hereby surrender said Beneficiary Certificate No. 1948 (the one sued on) to The Security Benefit Association for cancellation and I hereby, for myself and my beneficiaries, and for anyone claiming any right in, through or on account of said certificate, release said The Security Benefit Association from all liability thereunder." And it is alleged that the new certificate was issued and delivered to plaintiff. Other references to defendant's answer will be made hereinafter when necessary.

In reply plaintiff alleged that the certificate sued on is a Missouri contract; that he entered into the contract in good faith; kept and performed all conditions without objections by defendant; that his cause of action "accrued on November 24, 1934," and that on that date "the contract of insurance upon his part was fully executed," and that defendant is estopped to plead ultra vires. He further alleged that if the new certificate was fraternal, it was void under Section 5996, Revised Statutes 1929, because, at the time, he was over the age of sixty years.

Plaintiff further alleges in the reply that if defendant "has any instruments executed by him and purporting to be a release" of the certificate sued on, then such instruments "were wrongfully procured from plaintiff by defendant and its agents, through and...