Spears v. Independent Order of Foresters

• Decision Date: 24 May 1937
• Docket Number: No. 18888.,18888.
• Citation: 107 S.W.2d 126
• Parties: SPEARS v. INDEPENDENT ORDER OF FORESTERS, Inc.
• Court: Missouri Court of Appeals

107 S.W.2d 126

SPEARS v. INDEPENDENT ORDER OF FORESTERS, Inc.

No. 18888.

Kansas City Court of Appeals. Missouri.

May 24, 1937.

Rehearing Denied June 14, 1937.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be published in State Reports."

Suit by Nellie P. Spears against the Independent Order of Foresters, Inc. Judgment for defendant, and plaintiff appeals.

Affirmed.

J. Roy Smith and Goodwin & Creason, all of Kansas City, for appellant.

Gardner Smith, D. C. Chastain, and Patterson, Chastain, Graves & Smith, all of Kansas City, for respondent.

BLAND, Judge.

This is a suit on a benefit certificate in the sum of $2000, issued by the defendant on June 1st, 1932, on the life of one Edward Spears, in which the plaintiff, his wife, was the beneficiary. There was a verdict and judgment in favor of the defendant. Plaintiff has appealed.

Defendant is a fraternal beneficiary association organized under the statutes of the Parliament of Canada and is authorized to do business in this state as such an association.

The certificate was issued pursuant to an application by Edward Spears to the defendant, dated May 21st, 1932. This application was attached to and became a part of the certificate. The application stated that insured was the holder of a benefit certificate issued to him by the Modern Brotherhood of America and that on behalf of himself, and all persons having any interest in said certificate, he renounced and surrendered said certificate and that he made application to the defendant for a benefit certificate to be issued by it for $2000, on "the whole life plan."

This application provided that the constitution and laws of the defendant, together with the application for the benefit certificate, should constitute the entire contract between the parties. The application further provided that insured should pay the insurer monthly dues of $9.90, beginning with the month of February, 1933. Appended to the application was an agreement that all payments by the applicant "as dues or contributions which would have been payable under applicant's said benefit certificate in said Modern Brotherhood of America on and after January 1st, 1932, and before February 1st, 1933, and all dues paid by said applicant prior to February 1st, 1933, on the Benefit Certificate issued by the Independent Order of Foresters on the foregoing application, shall be construed as payment made of dues or contributions on said last named Benefit Certificate due on or after February 1st, 1933, and said payments so made shall be credited thereon".

Pursuant to this application defendant issued to insured the benefit certificate sued on herein, agreeing to pay the sum of $2000, being the amount of said Modern Brotherhood of America certificate, in the event "of insured's death before January 31st, 1933, or, to pay the sum of $2000 in the event of such death on or after February 1st, 1933. Provided the said member shall have paid to his subordinate Court, for the Head Office of the Order, the contribution of Nine dollars and ninety cents monthly in United States Currency in advance before the first day of each month previous to the month for which the monthly contribution is paid, starting with the contribution for the month of February, 1933, and continuing until the end of the month of said member's death. Together with any additional monthly contribution required under the Constitution and Laws of the Order on account of the occupation of said member. With thirty days' grace for the payment of any contribution except the first."

The certificate contained a paragraph headed "Extended Insurance Protection", which read as follows:

"In the event of the non-payment when due of any contribution required under this Certificate, or demanded by the Order, the Order will continue this Certificate in force notwithstanding such non-payment, and will pay the face of this certificate in the event of the death of the within member within the period stipulated in the following table opposite the number of years, ignoring fractions of a year, which this certificate has been in force at the date of the said non-payment, the said period to date from the first day of the month for which the monthly unpaid contribution is payable, provided the within member maintain his `good standing' in the Order by the payment of the dues or contributions required under the Constitution and Laws of the Order, other than those stipulated on the first page of this certificate; otherwise the within member shall become suspended from the Order and all benefits under this certificate shall be null and void."

"The benefits contained in this certificate shall be fully restored upon the within member complying with the requirements of the Constitution and Laws of the Order relative to suspended members."

Following this appears a table of extended insurance beginning with three years duration of the certificate and concluding with 20 years duration. The period of extended insurance, after 3 years of the duration of the certificate, is one year and 7 months, the period increasing as the age of the certificate increased.

The certificate also contained a paragraph headed "Conditions", reciting that the benefit certificate issued by the defendant, together with its charter issued under the statutes of the Parliament of Canada and the Constitution and Laws of the Order, the application and certificate and the documents stipulated in the application, constituted the agreement between the parties; that "`Good standing' of the said member in the Order, as defined in the said Constitution and Laws, is a condition precedent to the rights of the said member or of those claiming under him to receive any of said benefits. `Good standing' includes the payment to the Order by the member of the contributions at the time and in the manner required of the said member by this certificate by Supreme Court of the Order, and by the said Constitution and Laws".

Under the paragraph headed "Statutory Requirements" appears the following in the certificate: "The liabilities of any member of the Society shall be limited to the assessments, dues, fees, taxes and fines of which, at the date of which he ceases to be a member by withdrawal, expulsion, suspension or non-payment of assessments or dues or otherwise, notice of which has actually been given by the Society, or which under its Constitution and Laws have matured and have become due; provided that no member or his beneficiary shall be entitled to any pecuniary benefit of the Society during the time such member is in default with respect to the payment of any assessments, dues, fees, taxes and fines".

Certain sections of the Constitution and Laws of the defendant were introduced in evidence by the defendant. These provided that, upon the failure to pay the required payments to the Order within the grace period, "the member so failing shall ipso facto stand suspended from the Order;" that a member is in good standing "while he is making the required payments to the Order and is not suspended or expelled by or under any provision of the Constitution and Laws;" that "when a member ceases to be in good standing in the Order, his right, title and interest in and to the property or funds, or any part thereof, of the Order, of any Court or Branch of the Order, shall thereby cease and become and be null and void, and his liabilities in regard to any of the required payments to the Order which may thereafter accrue, shall then and thereby terminate".

Plaintiff introduced the certificate sued on but made no showing as to the payment of the premiums or contributions. Defendant offered an instruction in the nature of a demurrer to the evidence, which was refused and, thereupon, introduced evidence tending to show that insured had carried a benefit certificate in the Modern Brotherhood of America, referred to as the M. B. A. for 32 years prior to June, 1932, and that defendant "took over the M. B. A." prior to the issuance of the certificate in suit.

The national secretary of the defendant testified that the Order's records showed that there was a credit of $15.28 paid by the insured from January to April, 1932 on the M. B. A. certificate and $9.90 paid to the defendant at the time the application was made to it, or a total sum of $25.18, which was applied on the new certificate to pay the contribution of $9.90 for February and March, leaving $4.38 on account of the month of April, 1933 and that defendant's records showed that insured was suspended in April, 1933 but, in fact, he was suspended in May, 1933.

The evidence shows that insured died on October 19th, 1934. There is no evidence that insured, or anyone else for him, paid any money other than that testified to by the defendant's secretary.

It is insisted by the plaintiff that her instruction No. One should have been given. An examination of this instruction shows that it directs a verdict for the plaintiff for the amount of the certificate, with interest. Other instructions were offered by the plaintiff, which were refused. We need not go into the question as to whether, technically, plaintiff may, under the circumstances, urge that her instruction for a directed verdict was improperly refused (On this question see Everhart v. Bryson, 244 Mo. 507, 149 S.W. 307), for the reason, we are of the opinion that plaintiff was not entitled to a directed verdict in any event. Of course, the evidence shows that there were no payments made upon the certificate for several months prior to insured's death but plaintiff contends that, notwithstanding this, the certificate should be considered as in force at the time of the death because defendant took over all of the assets of the Modern Brotherhood of America and that, since insured had paid on his certificate in the latter for 32 years and was in good standing when the M. B. A. was taken over by the defendant company, defendan...