State ex rel. National Council of Knights & Ladies of Security v. Trimble
| Decision Date | 11 March 1922 |
| Citation | 239 S.W. 467,292 Mo. 371 |
| Parties | THE STATE ex rel. NATIONAL COUNCIL OF KNIGHTS AND LADIES OF SECURITY v. FRANCIS H. TRIMBLE et al., Judges of the Kansas City Court of Appeals, and MARTHA BRYANT |
| Court | Missouri Supreme Court |
Record quashed.
S. C Gill and J. B. Gallagher for relator.
(1) The laws in force at the time relator herein issued the certificate sued on, Feb. 3, 1911, specifically exempted fraternal beneficiary associations from the general provisions of the insurance laws of Missouri. And this law applies to foreign fraternal societies which comply with, as well as those organized under, the Missouri law. Secs. 7109 7111, 7112, R. S. 1909; Ordelheide v. M. B. A., 268 Mo. 339, 347; Claudy v. Royal League, 259 Mo. 92 105; Hartmann v. Knights & Ladies of Security, 190 Mo.App. 106. (3) The Court of Appeals in deciding that the National Council of the Knights and Ladies of Security could not make the defense of misrepresentations in the application of the insured, and breaches of warranties, under the terms of the certificate sued on as against the plaintiff beneficiary, unless it first offered to return the premiums or dues it had received, conflicted with the latest controlling decisions of this court. Said decision of the Court of Appeals is in conflict with the following decisions of this court: Schuermann v. Union Central Life Ins Co., 165 Mo. 641; Kern v. Legion of Honor, 167 Mo. 471; State ex rel. Garesche v. Roach, 258 Mo. 552; State ex rel. v. Reynolds, 229 S.W. 1057. (4) The rule in suits to cancel policies of insurance during the life of the insured being actions in equity, the party asking for the cancellation is required to place the other party in statu quo -- return the benefits received -- hence the rule, he who seeks equity must do equity. But a different rule prevails after the death of the insured; it is then too late to bring an action in equity to cancel the policy or certificates. Schuermann v. U. C. L. I. Co., 165 Mo. 652; Kern v. Legion of Honor, 167 Mo. 487. (5) The pleadings, application, benefit certificate sued on, instructions and other written documents referred to in the opinion are before this court for review, because: The scope of review in certiorari proceedings in the Supreme Court extends to all pleadings, instructions and written documents to which direct reference has been made in the opinion of the court of appeals. State ex rel. v. Ellison, 281 Mo. 674. (6) The appellate courts of this State have repeatedly held that relator is a fraternal beneficiary association. Goodwin v. Natl Council, 166 Mo.App. 292; Davis v. Natl. Council, 196 Mo.App. 487; Keys v. Natl. Council, 174 Mo.App. 673; Hartmann v. Natl. Council, 190 Mo.App. 92.
Embry & Embry for respondent, Martha Bryant.
(1) The petition for the writ of certiorari filed in this court is wholly insufficient and does not meet the requirements of Rule 34 of this court. It does not set out the issue presented and does not show wherein there is a conflict between the decision of the Court of Appeals and any decision of this court as required by said Rule 34. (2) The decision of the Court of Appeals quoting the defense that is set up in the answer of National Council uses the following language: "The defense made is that the policy was void ab initio." But in appellant's petition to this court for a writ of certiorari counsel for National Council attempt to recede from its position thus stated and allege that the policy was not null and void but only voidable. (3) Under the decision of the Court of Appeals in this cause, the decision rendered by the last named court is not in conflict with the case of Kern v. Legion of Honor, nor in conflict with Schuermann v. Union Central Life Insurance Co., as alleged by petition. Kern v. Legion of Honor, 167 Mo. 471; Schuermann v. Union Central Lifs Ins. Co., 165 Mo. 653. (4) The attempt on the part of the National Council to have the court declare that the certificate sued on was void ab initio as stated in said decision, thereby meaning that it was never liable on such certificate, and at the same time retain all that had been received on said certificate is against the principles of natural justice and should not be tolerated. Davis v. Knights & Ladies of Security, 196 Mo.App. 495; Jegglin v. Woodmen of the World, 216 S.W. 817. (5) The rule which denies a party to a contract the right to say that there was never any liability on a contract and at the same time keep the benefits of the contract does not depend on Sec. 6145, R. S. 1919, but is a rule founded upon principles of justice. Drucker v. Indemnity Co., 223 S.W. 989; Bank v. Lyons, 220 Mo. 556; Sparks v. Jasper Co., 213 Mo. 240. (6) In the case of Wilson v. Modern Brotherhood of American Yeomen, decided by the St. Louis Court of Appeals, and which decision was quashed by this court, the facts are entirely different from the facts in this case. In that case, the petition stated that the defendant was a fraternal beneficiary association and the same was admitted in the answer, and in the opinion rendered by the St. Louis Court of Appeals it is stated that Modern Brotherhood was a fraternal beneficiary association authorized to do business in Missouri, whereas in the present case, the petition did not allege that National Council was a fraternal beneficiary association, and the trial court did not find that it was a fraternal beneficiary association, and the opinion of the Court of Appeals did not find that it was a fraternal beneficiary association. (7) The certificate of insurance in the Wilson Case was dated the 28th day of May, 1915, and therefore the statute cited in the 229 S.W. 1057 (Sec. 5, Laws 1911, p. 265; Sec. 6401, R. S. 1919) was in force, whereas the date of the policy in the present case is February 3, 1911, and the statute under which the decision of the St. Louis Court of Appeals in the Wilson Case was quashed did not go into effect until fifty-five days after the issuance of the policy to Bryant by the National Council of the Knights & Ladies of Security. Therefore, quashing the decision in the Wilson Case is no ground for quashing the opinion of the Court of Appeals in this.
In Banc.
Certiorari.
-- This is an original proceeding in certiorari. Relator alleges that the opinion of respondents as judges of the Kansas City Court of Appeals in the case of Martha Bryant v National Council of the Knights and Ladies of Security (relator), decided at the March Term, 1921, of said court, is in conflict with certain controlling decisions of this court. Relator therefore seeks to quash the record in said case.
Said suit was brought upon a death-benefit certificate in the sum of $ 1000, issued on February 3, 1911, by relator, upon the life of James P. Bryant, who died December 18, 1918. Martha Bryant is the mother of said deceased and was named as beneficiary in said certificate. Relator refused payment. Trial was had before the court without a jury, resulting in a judgment in favor of said beneficiary and defendant appealed. The judgment was affirmed by said Kansas City Court of Appeals.
Relator is a fraternal beneficiary association incorporated under the laws of Kansas and duly authorized to issue benefit certificates and to operate in this State. This finding is hereinafter discussed more at length.
Respondents found the facts to be, as alleged in the answer of the defendant below, that insured in his application had stated that none of his sisters had been afflicted with consumption, when in fact two of them had previously died as the result of tuberculosis; that insured had represented the cause of their death as pneumonia. Respondents in their opinion said:
"The evidence fully supports the allegations made in defendant's answer in reference to the statements in the application, the provisions of the application and benefit certificate, and the death of insured's sisters, but at no time has defendant made an offer to return the premiums collected nor did defendant deposit such premiums in court for whosoever was entitled to them."
Relator contends that said opinion "specifically decides that a fraternal beneficiary society cannot successfully defend in a suit by the beneficiary in a benefit certificate on account of breach of warranties, after death of insured, without tendering in court the dues or premiums received by it." We think this is a fair statement of the essence of the opinion of the Court of Appeals. Relator contends the opinion is therefore in conflict with Schuermann v. Union Central Life Ins. Co., 165 Mo. 641, 65 S.W. 723, and Kern v. Legion of Honor, 167 Mo. 471, 67 S.W. 252.
I. Counsel for respondents at the outset contend that relator has not complied with our Rule 34 covering issuance of writs of certiorari, because the petition for such writ does not set out the issue and does not show wherein the alleged conflict exists between the opinion and decisions of this court. The same objection was raised in the suggestions in opposition to the issuance of our writ and, notwithstanding such preliminary objection, we issued the writ, and having taken jurisdiction will proceed to determine the case on its merits. However, we have again examined the petition on that point and find that the suggestion is not well taken, as an examination of the petition will show.
II. Counsel for respondents contend that the trial court did not find that relator was a fraternal beneficiary association that the opinion does not so hold and that plaintiff below did not allege in her petition that relator was such fraternal beneficiary association, and therefore there is no proof before this court that relator is such fraternal...
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