State ex rel. Security Ben. Ass'n v. Shain

• Decision Date: 01 April 1938
• Docket Number: 35648
• Citation: State ex rel. Security Ben. Ass'n v. Shain, 114 S.W.2d 965, 342 Mo. 199 (Mo. 1938)
• Parties: State of Missouri at the relation of the Security Benefit Association, Relator, v. Hopkins B. Shain, Robert M. Reynolds and Ewing C. Bland, Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

114 S.W.2d 965

342 Mo. 199

State of Missouri at the relation of the Security Benefit Association, Relator, v. Hopkins B. Shain, Robert M. Reynolds and Ewing C. Bland, Judges of the Kansas City Court of Appeals

No. 35648

Supreme Court of Missouri

April 1, 1938

Opinion of the Kansas City Court of Appeals Quashed.

William C. Michaels, Roy P. Swanson, Kenneth E. Midgley and William E. Stringfellow for relator; A. W. Fulton, Michaels Blackmar, Newkirk, Eager & Swanson and Stringfellow & Garvey of counsel.

(1)The Court of Appeals ruled contra to controlling decisions of this court in holding that the certificate sued on was the "contract," and was an old line policy because in it "nothing is said of any similar payment by any other policyholders."State ex rel. Nat. Council of Knights & Ladies of Security v. Allen,306 Mo. 633, 269 S.W. 388;Smith v. Travelers Protective Assn.,319 Mo. 1120, 6 S.W.2d 870.(2)The opinion of the Court of Appeals is contra to controlling decisions of this court in ruling that the word "contract" in Section 6005,Revised Statutes 1929, part of the fraternal benefit society code, means only the certificate or "policy."(3) Since the certificate expressly defined "the contract" as consisting of the certificate constitution, laws, etc., and expressly provided that "all of which shall have the same force and effect as if incorporated in this certificate," and since the laws did show how benefits were provided, the Court of Appeals ruled contra to controlling decisions of this court in holding that such certificate did not "show" how benefits are provided.St. Louis v. St. Louis Gaslight Co.,70 Mo. 69;Fidelity Loan Sec. Co. v Moore,280 Mo. 315, 217 S.W. 286;Westerman v. Supreme Lodge, K. of P.,196 Mo. 670, 94 S.W. 470;Elliott v. Des Moines Life Assn.,163 Mo. 132, 63 S.W. 400.(4)The opinion of the Court of Appeals conflicts with controlling decisions of this court in holding that Section 6005 applies to doing of business by all foreign fraternal societies, whereas the section clearly and unambiguously applies only to admission of a "foreign society . . . not now authorized to transact business in this State."Orthwein v. Germania Life Ins. Co., 261 Mo. 650, 170 S.W. 885;Elsas v. Montgomery Elevator Co.,330 Mo. 596, 50 S.W.2d 130;State ex rel. Jacobsmeyer v. Thatcher,92 S.W.2d 640, 338 Mo. 622;Cummins v. K. C. Pub. Serv. Co.,334 Mo. 672, 66 S.W.2d 920;Keane v. Strodtman,323 Mo. 161, 18 S.W.2d 896;State ex rel. Barlow v. Holtcamp,322 Mo. 258, 14 S.W.2d 646;State ex rel. Am. Yeomen v. Reynolds,287 Mo. 169, 229 S.W. 1057.(5) The opinion conflicts with decisions of this court in subjecting relator to the general law when moving within its legal sphere as a fraternal beneficiary society.State ex rel. Knights & Ladies of Security v. Allen, 306 Mo. 633, 269 S.W. 388.

John B. Frederick and Elliott & Crouse for respondents.

(1) Analysis will disclose that much of relator's brief is directed not so much toward showing a conflict as to an attempt to show that the decision of the Court of Appeals is incorrect or unsound.But certiorari is not authorized on such ground.State ex rel. Calhoun v. Reynolds,233 S.W. 483;State ex rel. Sec. Mutual v. Allen,267 S.W. 379, 305 Mo. 607;State ex rel. Fichtner v. Haid,22 S.W.2d 1045, 324 Mo. 130;State ex rel. Am. Surety Co. v. Haid,30 S.W.2d 100, 325 Mo. 949;State ex rel. Metropolitan v. Allen,100 S.W.2d 487, 339 Mo. 1156;State ex rel. Kinealy v. Hostetter,104 S.W.2d 303;State ex rel. O'Dell v. Hostetter,104 S.W.2d 671.If there were such a conflict as would authorize certiorari, we believe this court, upon examination of the opinion of the Court of Appeals, would find that it announces sound law and should be upheld.There being no conflict, we shall refrain from urging the soundness of the opinion.(2) It is well settled that the construction of statutes is as much within the province of the Courts of Appeals as of the Supreme Court and that an opinion of a Court of Appeals construing a statute cannot be questioned by certiorari unless this court, on similar facts, has given the same statute a definite construction which the Court of Appeals refuses to follow.State ex rel. Tummons v. Cox,282 S.W. 694, 313 Mo. 673;State ex rel. Arndt v. Cox,38 S.W.2d 1079, 327 Mo. 790;State ex rel. Superior Mineral Co. v. Hostetter,85 S.W.2d 743, 337 Mo. 718.(3)The opinion of the Court of Appeals is not in conflict with any of the cases cited under relator's Point 3. St. Louis v. St. Louis Gaslight Co.,70 Mo. 69, andFidelity Loan Securities Co. v. Moore,280 Mo. 315, 217 S.W. 286, hold that, when a written contract refers to another instrument of writing as a part of it, the contract should be read as if the writing referred to had been copied into the contract as a part thereof, but, as we have said in answer to relator's Point 1, the opinion of the Court of Appeals does not hold that relator's constitution, by-laws, etc., are not a part of the contract, and merely holds that the term "a copy of its contract", as used in Section 6005, in that peculiar setting, means the policy, whatever the policy may include.Westerman v. Supreme Lodge,196 Mo. 670, 94 S.W. 470, andElliott v. Des Moines Life,163 Mo. 132, 63 S.W. 400, cited by relator have no applicability whatever.Neither of them refers in any way to the statute here in question or throws any light upon its construction.

Hyde, C. Ferguson, C., absent; Bradley, C., concurs.

OPINION

HYDE

This is a proceeding in certiorari seeking to quash the opinion of the Kansas City Court of Appeals in Wilhelm v. The Security Benefit Association,104 S.W.2d 1042, which was a suit upon an insurance certificate issued by relator to Arthur F. Geiler.

The answer stated that defendant(relator) was a Kansas fraternal benefit society duly licensed in Missouri.Its defenses were that Geiler committed suicide, and that plaintiff was not entitled to recover as a beneficiary because not related to or dependent upon him as required by Section 5995,Revised Statutes 1929.The Court of Appeals found that "in the application Geiler said that plaintiff was related to him 'as dependent;'" but that "plaintiff testified in effect that she was not at any time dependent on Geiler and that Geiler was dependent on her."However, the Court of Appeals did not consider these defenses because it concluded "that the contract issued to Geiler subjects the association to the general insurance laws of Missouri as to that particular certificate."

The court said: "Even though defendant company may be duly licensed as a 'fraternal' in another state, and may have been admitted to do business as such in Missouri, yet it must come strictly under the law of Missouri governing fraternal insurance associations and make its contracts under the law. . . .The policy in the instant case does not meet statutory requirements of our fraternal beneficiary law.Section 6005, R. S. Mo. 1929, provides that before a foreign fraternal can be licensed in Missouri it must file a 'copy of its contract, which must show that benefits are provided for by periodical or other payments by persons holding similar contracts.'Since the contract filed must be in that form, it follows that the contract issued by the company must conform to what is filed.Any other holding, in the face of Section 6005, would permit and encourage such companies, after securing a license, to sell any and all kinds of contracts without regard to their terms or character.The State would have no control of the company once it had secured its license.The policy here sued on provides for payment of the benefit therein mentioned from collection of $ 1.30 per month from the policy holder and nothing is said of any similar payment by any other policy holders.The policy does not conform to the law regulating fraternal beneficiary companies and defendant's measure of liability is that of an old line company."

The certificate sued on is before this court, because referred to in the opinion.[State ex rel. Fidelity & Deposit Co. v. Allen(Mo.),85 S.W.2d 455;State ex rel. Talbott v. Shain,334 Mo. 617, 66 S.W.2d 826, and cases cited.]Material parts thereof are, as follows:

"This certificate, issued by The Security Benefit Association, a Fraternal Beneficiary Society, of Topeka, Kansas, organized under the laws of the State of Kansas, Witnesseth, that Arthur F. Geiler, a member of Olive CouncilNo. 300, located at St. Joseph, State of Mo., is entitled to the privileges and benefits of the Association, subject to the obligations and responsibilities provided for in the Constitution and Laws of the Society.

"In consideration of the statements, answers and agreements in the application of the member, which by this contract are made warranties, and in further consideration of the first monthly contribution of $ 1.30 paid before or at the time of the delivery of this Certificate, and $ 1.30 to be paid each month thereafter to the Financier of the Local Council, in accordance with the provisions of the Constitution and Laws of the Society.

"I.The Security Benefit Association promises to pay a Death Benefit to Olive G. Wilhelm related to the said member as dependent, in the sum of One Thousand Dollars within ninety days after receipt of satisfactory proof of the death of said member while in good standing. . . .

" The Contract.This Certificate, together with the Charter and the Constitution and Laws of the Society and all amendments to each thereof, and the application for membership and medical examination signed by the member which are made a part hereof, shall constitute the agreement between the member and the Society.Copies of the same certified by the National Society...