Stout v. Independent Order of Foresters
| Citation | 148 S.W.2d 137,235 Mo.App. 787 |
| Parties | MARIE H. STOUT (FORMERLY MARIE H. CLEVIDENCE), VIRGINIA LEE SANDIE (FORMERLY VIRGINIA LEE CLEVIDENCE), AND GILBERT H. CLEVIDENCE, PLAINTIFFS AND RESPONDENTS, v. THE INDEPENDENT ORDER OF FORESTERS, A FOREIGN CORPORATION, DEFENDANT AND APPELLANT |
| Decision Date | 17 February 1941 |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Jackson County.--Hon. Paul A. Buzard Judge.
REVERSED AND REMANDED (with directions).
Cause reversed.
Goodwin Creason for respondents.
(1) The trial court properly admitted the copy of the certificate in suit, for the following reasons, to-wit: (a) Because it was admitted in evidence in the first trial of this case, without objection, as shown in 115 S.W.2d 32. (b) John F. Lang Supreme Secretary, testified that he did issue and mail to Howard E. Clevidence a certificate for the amount claimed therefore plaintiffs had the right to the possession thereof. 32 C. J., sec. 228, p. 1126. (c) Since the trial of this case, we have found the original. (2) The merger agreement provides that, after setting aside the reserves above required, i. e., "old age" and "whole life" other than to those holding certificates at an age less than their actual age, "all then remaining in the reserve, surplus and benefit funds of the M. B. A. shall be set aside for the benefit and be apportioned to the credit of certificates held by M. B. A. members under Sections 127 and 127A." Nothing is there said or elsewhere in said merger agreement that said credits should be distributed to part payment of future assessments throughout the life of the insured. Such attempted distribution was first raised by witness, Pipes, after the merger agreement had been consummated. Therefore defendant held those credits in trust for Clevidence and others, and could not legally declare a forfeiture or lapse of the insurance for nonpayment of assessments, until the whole of said credits, applied in payment thereof, were exhausted. Pipes says that there was a net credit to Clevidence of $ 238.92. To this must be added sums paid insured in 1932. Spencer v. Security Benefit Ass'n. (Mo. App.), 297 S.W. 989, and 9 S.W.2d (Mo.); Newman v. John Hancock Mut. Life, 216 Mo.App. 180 183, 257 S.W. 192; Newman v. John Hancock Mut. Life, 7 S.W.2d 1015; American National Ins. Co. v. Ye Lina Shee, 104 F. Rep. (2d) 688; North v. Nat. Life and Accident Co., 231 S.W. 665, 666; Dobins v. American Central Life Ins. Co., 112 S.W.2d 148; 32 C. J., sec. 462, p. 1264. Therefore, the trial court did err, as it held on the motion for a new trial, in refusing plaintiffs' instruction No. 2. It is conceded that defendant at that time held at least $ 238.92 to the credit of Howard E. Clevidence; under the above decisions, it could not legally declare a forfeiture or lapse for non-payment of assessments while it held moneys belonging to Clevidence in excess of the amount, if any, due at the time of the attempted lapse or forfeiture. This court on the first appeal of this case, distinctly held that defendant must give Howard E. Clevidence full credit for funds in its hands belonging to Clevidence, 115 S.W.2d 32. That ruling is res adjudicata of that issue. (3) Plaintiffs pleaded performance; they introduced the certificate in evidence; defendants in their amended answer admit that plaintiffs are the beneficiaries and that Howard E. Clevidence died on August 8, 1934. Holman v. Met. Life Ins. Co., 98 S.W.2d 343; Girvin v. Metropolitan Life Ins. Co., 75 S.W.2d 596; Sharp v. Royal Arcanum, 251 S.W. 129; Gooden v. Modern Woodmen of America, 189 S.W. 394; Lafferty v. Kansas City Casualty Co., l. c. 752, par. (1, 2), and p. 753, par. (5). (4) The trial court correctly held, on motion for a new trial, that it erred in giving defendant's Instruction No. 3. That instruction left out of consideration the credits held by defendant belonging to Clevidence. There was ample in said credits to pay the full premium long past the time defendant attempted to declare a lapse, or forfeiture. (5) The trial court erred in giving defendant's instruction No. 4, for the same reasons assigned under Point 3. Furthermore, defendant claims that out of the assessments paid by Clevidence in 1932, it applied same to the February and March, 1933, payments twice $ 11.70 for the months of February and March; under its system, each payment is for the succeeding month; therefore the premium was paid out of these funds alone for April; hence its attempt to declare the insurance lapsed in April was wrongful and void. (6) The trial court properly held that it erred in giving defendant's Instruction No. 5, because it told the jury that the sole question for its determination is whether or not the insurance in question became lapsed, when it is conceded that had defendant, at and before the time of the alleged lapse, applied credits in its hands, belonging to Clevidence, to the payment of assessments as they became due, said insurance would not have been in default. (7) The trial court properly held that it erred in giving defendants Instruction No. 6, because it leaves out of consideration moneys belonging to Clevidence, but in the hands of defendant, which if applied to the payment of assessments as they became due, the insurance would not have been in default, and, therefore, not subject to forfeiture. (8) The trial court properly held that it erred in giving defendant's Instruction No. 8 because said instruction told the jury that there was no evidence in the case showing that defendant had failed to comply with the obligations imposed upon it by the merger agreement with respect to the allocations of the assets received by defendant from the M. B. A. and further in telling the jury that in determining whether or not the certificate of insurance sued on was in force, they must not take said assets into consideration, when, as we have seen, supra, defendant then held more assets belonging to Clevidence, independent of other proper credits, than was necessary to pay said assessments and keep the insurance in force. (9) Witness, Pipes, actuary admitted that he prepared instructions to deputies to be used by them in approaching former M. B. A. members in the concession rate class, Clevidence being one of that class. Those instructions were merely Pipes' interpretation of the merger agreement, made after the merger agreement was consummated, and the agreement, itself determines what rights such members had thereunder. Said instructions were false and deceiving, in that they did not tell such agents and such members through such agents that such members were entitled to the credits therein provided, and such members were deceived thereby, and the trial court was first misled thereby, and corrected it on motion for new trial. (10) The Missouri courts have jurisdiction to interpret and construe the merger agreement, Somerville to the contrary notwithstanding. We concede that if a contract provides that it shall be construed according to the laws of a foreign jurisdiction, our courts, in a controversy with it, arising in this State, must interpret the substantive law as declared by the courts of the foreign country where the contract was shown to be made. But we find no authority anywhere among the decisions of this State which deprive our courts of jurisdiction to hear and determine the right of litigants who are residents of this State, especially where the controversy involves the policy or contract issued by said foreign corporation, and delivered in this State to a citizen of this State claiming said corporation had breached its contract. There are many decisions in this State, where our courts have assumed jurisdiction and have construed contracts, when it was conceded that same were to be construed according to the laws of the domicile of the other party upon substantive matters. It is unnecessary to cite decisions on this point, though we cite on this point the recent decision of Bolin v. Sovereign Camp of W. O. W., 59 S.Ct. 35. But Howard E. Clevidence was a party to the merger agreement. The M. B. A. in making the merger contract, spoke through delegates elected by the local courts. It is conceded that the M. B. A. was fraternal benefit society having a representative form of government. The contract of these representatives as such, is as much the contract of the members, as if they were present and participated in the proceedings; the members signed the merger agreement through their representatives. (11) It is the well-settled rule that an appellate court will sustain the action of the trial court in granting a new trial, unless it be shown that the trial court was arbitrary and oppressive, in making such ruling. Peerless Fixture Co. v. Frick, 133 S.W.2d 1089, l. c. 1093.
Norman Sommerville, E. D. Perry and Patterson, Chastain, Graves & Smith for appellant.
(1) The court erred in holding that he should have refused defendant's Instruction No. 8. (a) The theory of plaintiffs' action is that they seek to enforce rather than to rescind the insurance certificate issued by defendant to Howard E. Clevidence. This certificate represented an indivisible contract and in a suit to enforce it, the plaintiffs were bound by every condition and recital in the certificate. They cannot in the same action seek to recover on the favorable part and repudiate another part that may be unfavorable. Fox v. Windes, 127 Mo. 502, 512, 30 S.W. 323; Stone v. Cook, 179 Mo. 534, 78 S.W. 801; Austin v. Collins, 317 Mo. 435, 438, 297 S.W. 36; Beavers v. Bank, 177 Mo.App. 100, 105, 163 S.W. 529; Estes v. Reynolds, 75 Mo. 563, 565; Wood v Telephone Co., 223 Mo. 537, 563, 123 S.W. 6; Miller v. Ins. Co., 194 Mo.App. 265, 186 S.W. 762; Expansion Realty Co. v. Geren, 185 Mo.App. 440, 170 S.W. 928; 12 Am. Jur., sec. 444, p. 1027; ...
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