Thomas v. Modern Woodmen of America

Citation260 S.W. 552
Decision Date01 May 1922
Docket NumberNo. 13973.,13973.
PartiesTHOMAS v. MODERN WOODMEN OF AMERICA.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Lafayette county; Samuel Davis, Judge.

Action by Mary E. Thomas against the Modern Woodmen of America. Judgment for defendant, and, from an order sustaining plaintiff's motion for new trial, defendant appeals. Reversed and remanded, with directions.

Barbour & McDavid, of Springfield, H. P. Blackwell, of Lexington, and Truman Plantz, of Warsaw, Ill., for appellant.

Lyons & Ristine, of Lexington, for respondent,

BLAND, J.

This is an action upon a death benefit certificate in the sum of $2,000, issued by defendant, a fraternal benefit society, upon the life of Charles Homer Thomas in favor of his mother, the plaintiff herein, as beneficiary. The insured died on the 17th day of June, 1919, as the result of an electric shock and burn received while he was engaged in the occupation of an electric lineman and working for the Missouri Gas & Electric Service Company at Liberty, Mo. Defendant refused to pay the amount of the policy, and plaintiff brought this suit. A jury was waived, and the case was tried by the court, resulting in a judgment for the defendant. A motion for a new trial was filed by plaintiff, and the court sustained the same, giving as his reason that "the court erred in sustaining defendant's objection to plaintiff's offer to prove that defendant waived the insured's engaging in a hazardous occupation." Defendant has appealed.

The contract consisted of the application, defendant's by-laws, and the benefit certificate. In his application the deceased stated that he was employed as a laborer with the Lexington Water Company, and that he was not employed directly or indirectly "in any of the occupations classed as hazardous or prohibited by the by-laws of this society"; that he agreed that he would not engage in any of such occupations except at the same time recognizing the full force and effect of defendant's by-laws, limiting or extinguishing the society's liability upon the certificate of any member engaging in such occupation; that he agreed that, if he failed to comply with any of such by-laws then in force or thereafter to be adopted, the benefit certificate should be void. The by-laws provided that any person who was engaged in the occupations named as hazardous in said bylaws should not become a beneficiary member of the society, and, if any applicant changed his occupation after making his application and prior to its adoption by engaging in such an occupation, he should not be eligible to join the society as a beneficiary member. The by-laws named as hazardous the following among other occupations: "11. Electric car, power, light or telephone linemen." The by-laws provided that engaging in or entering on or continuing in any or me hazardous occupations therein named "shall totally exempt said society from any and all liability to such member, his beneficiary or beneficiaries, on account of the death of such member directly traceable to employment in such hazardous or prohibited occupation."

The benefit certificate contains the following:

"If the said member at any time after the issuance of said benefit certificate, shall enter upon any of the prohibited or hazardous occupations mentioned in the by-laws of this society, as the same now exist or hereafter may be modified, amended, added to or enacted, the entrance into said employment shall extinguish or limit the liability of this society upon said certificate in accordance with the by-laws thereof in force at the time of his death."

All of these provisions of the application, by-laws, and benefit certificate were pleaded in the answer, together with the fact that the insured came to his death while in the performance of his duties and while engaged in the occupation of an electric lineman, and that his death resulted from an electric shock directly traceable to his said employment.

The reply alleges that defendant and its officers had full knowledge of the fact that the insured had engaged in the occupation of an electric lineman, and with such knowledge defendant's officer stated to him that it was "all right" for him to engage in such work and occupation, and that, if while so engaged he was killed, the benefit certificate would be paid "without question"; that the insured relied upon such representations and continued to pay his dues and was in good standing at the time of his death; that by reason of such circumstances, "and the statements and waivers made" by the defendant, plaintiff was entitled to the insurance provided for in the benefit certificate.

The offer of proof, containing matter which it is claimed shows waiver, which was excluded by the court and for which reason the court granted plaintiff a new trial, was to the effect that one Anthony Doble, a district deputy head consul of the defendant, while in Lexington, Mo., the location of the camp of which the insured was a member, on financial business of the head camp, and while the local camp was in session, was asked by the insured, "at open lodge meeting" at the time Doble was explaining to the members of the lodge the by-laws and rules of the organization, whether or not, now that he had changed his occupation and was engaged as an electric lineman, if he were killed while so engaged, would his beneficiary receive her insurance, and that Doble replied:

"* * * That such work was classed as a hazardous occupation under the by-laws of the Modern Woodmen of America, but that, unless Charles Homer Thomas was expelled from the order on account of him so engaging, and that if he continued as a member of the order and paid all dues and assessments levied against him and was not expelled by the Modern Woodmen of America, and was killed while engaged as a lineman for the Electric Light Company, that his beneficiary, Mary E. Thomas, would receive her benefits, and that the insurance would be paid by the lodge without question. * * * That in reliance upon such statement made by Mr. Doble, for and on behalf of the head consul and head camp of the Modern Woodmen, Mr. Thomas continued as a member of the Modern Woodmen of America, continued to pay all dues and assessments levied against him as such member, and that at the time of his death had paid all dues and assessments and complied with all the rules and regulations of the defendant."

Plaintiff also offered to prove that shortly before deceased talked to Doble he stated to persons other than the representatives of the defendant that, if there was any question about his insurance in the defendant because he was engaged in one of the occupations classed as hazardous, he would drop this insurance and take other insurance; that he stated to his mother and other persons not representing the defendant that he relied upon the statements of Doble and continued to pay his dues and assessments on account of such assurance. The court likewise refused this offer of proof.

Plaintiff insists that the court erred in excluding these offers of proof, for the reason that they tended to prove that the "defendant accepted dues and assessments with full knowledge on the part of the district deputy head consul that the insured was engaged in a prohibited occupation, and defendant is now estopped from denying liability on account of such prohibited occupation." We think that the court properly excluded these offers of proof even assuming that Doble was such an officer of the defendant as would have authority to bind the defendant in the matters and things covered by the offer of proof, and there is a grave question as to whether he had such authority. We think that the evidence offered is insufficient to show either waiver or estoppel on the part of the defendant. The distinction between waiver and estoppel in insurance cases has not been fully recognized in the reported cases, but the two have been well defined in the case of Metcalf v. Phenix Ins. Co., 21 R. I. 307, 309, 43 Atl. 541, 542, as follows:

"A waiver arises by the intentional relinquishment of a right by a person or party, or by his neglect to insist upon his right at the proper time, and does not imply any conduct or dealing with another by which that other is induced to act or forbear to act to his disadvantage; while an estoppel necessarily presupposes some such conduct or dealing with another."

It is apparent that there was no relinquishment of a known right or neglect to insist upon a right at the proper time by the defendant. There was no forfeiture provided for the insured engaging in a hazardous occupation anywhere in the contract had by the insured with defendant. Under its terms he had a perfect right to enter upon any of the occupations denominated as hazardous in the by-laws, and by doing so the policy did not become void, but the agreement was that, if he entered into such a prohibited or hazardous occupation and his death should be traceable to his employment in such, then the defenc ant should be exempt from liability under the policy. If after the insured entered into the hazardous occupation he died from any other cause, the policy was enforceable to the same extent as though no such clause against hazardous occupations was contained in the contract. At the time Doble received the information that the insured was engaged in an occupation denominated as hazardous or prohibited, defendant could not have expelled...

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