Toomey v. Supreme Lodge, Knights of Pythias

• Decision Date: 13 December 1898
• Citation: 147 Mo. 129,48 S.W. 936
• Parties: TOOMEY v. SUPREME LODGE, KNIGHTS OF PYTHIAS.
• Court: Missouri Supreme Court

48 S.W. 936

147 Mo. 129

TOOMEY v. SUPREME LODGE, KNIGHTS OF PYTHIAS.

Supreme Court of Missouri.

December 13, 1898.

INSURANCE — SUICIDE AS A DEFENSE.

The Supreme Lodge, Knights of Pythias, originally purely a fraternal benevolent association, which by amendment of its charter was authorized to establish an endowment rank, and to issue certificates of membership therein providing for payment of a certain amount at death, the member to make fixed monthly payments, is, as to such a member, on such a certificate, an old-line insurance company, and, therefore, subject to Rev. St. 1889, § 5855, allowing such a company the defense of suicide only where suicide was contemplated at the time of application for policy.

In banc. Appeal from St. Louis circuit court; P. R. Flitcraft, Judge.

Action by Sophia Toomey against the Supreme Lodge, Knights of Pythias. Judgment for defendant was reversed by the St. Louis court of appeals, and the case is certified to the supreme court. Judgment of circuit court for defendant reversed.

This is a suit to recover $2,000 on a policy of insurance issued by defendant upon the life of Dennis Toomey, the late husband of the plaintiff. The circuit court rendered judgment for the defendant, but upon appeal by the plaintiff the St. Louis court of appeals reversed that judgment and remanded the case. 74 Mo. App. 507. Judge Biggs dissented, and because he was of opinion that the decision of that court was opposed to the decision of that court in the case of Theobald v. Supreme Lodge, 59 Mo. App. 87, and to the decision of this court in Association v Bunch, 109 Mo. 560, 19 S. W. 25, the case was certified to this court.

Farish & Williams, for appellant. Warwick M. Hough, for respondent.

MARSHALL, J.

1. At first blush, and without a careful analysis, the decision of the St. Louis court of appeals in this case and the decision of that court in the case of Theobald v. Supreme Lodge, 59 Mo. App. 87, might be thought to be in conflict, but such is not the real fact. The Theobald Case went to the court of appeals upon petition, answer, and demurrer to the answer, which had been overruled by the circuit court; the plaintiff refusing to plead further. The answer alleged that defendant was "a fraternal benevolent association, having only charitable and benevolent features in its organization, and, incident thereto, issues to its members benefit certificates"; that its by-laws provided that, if the member committed suicide, he should forfeit all claims on the certificate; and that the deceased did commit suicide, and hence it was not liable on the certificate. The demurrer admitted these facts, and the only questions decided in that case were: First, that section 5855, Rev. St. 1889, which prohibits the defense of suicide being interposed, unless the insured contemplated suicide at the time he made application for the policy, did not apply to fraternal benevolent associations; and, second, that stipulations in a contract of insurance avoiding the contract in case of suicide were not against public policy in this state. The facts upon which this case was presented to the court of appeals put a very different phase upon the character of the defendant, and conclusively demonstrate that instead of being "a fraternal benevolent association, having only charitable and benevolent features in its organization, and, incident thereto, issues to its members benefit certificates," as it represented itself to be in the Theobald Case, it is fraternal and beneficial to all of its members, but that as to about 10 per cent. of them (those who belong to what it calls the "Endowment Rank") it is a regular, old-line insurance company, and issues a straight policy of insurance, whereby, in consideration of fixed premiums, to be paid monthly, it promises to pay a sum certain upon the death of the insured. The decision in the Theobald Case was correct upon the facts as they were presented to the court in that case, but it would be gross injustice to that court to hold that, with the facts presented by this record, that court would reach the same conclusion in this case that it did in the Theobald Case. It does not admit of argument, therefore, that the two decisions do not conflict. The case of Association v. Bunch, 109 Mo. 560, 19 S. W. 25, was an interpleader, wherein the association had paid the money into court, and the heirs and the executor of the deceased were litigating the question as to which was entitled to the fund. Manifestly, no such question as is involved in this case was involved in that case. In fact, it does not even appear how the deceased in that case came to his death. It did appear, however, that the association was "a charitable corporation for insuring the lives of members of the Masonic fraternity upon the assessment plan," and that the provision of its constitution in this regard was: "Upon the death of a member of the association, the directors shall pay to the heirs or legal representatives of the deceased member of the association $5,000, or a sum equal to $1 for each member of the association, less the necessary expense of collecting the same, not to exceed ten per cent. All surplus of assessment shall be placed in the surplus fund." It is hard to conceive how any one could fall into the error of believing that the decision of the court of appeals in the case at bar is opposed to the decision of this court in the Bunch Case. But the case is here in a method provided for by the constitution, and it is our duty to examine and decide it "as in case of jurisdiction obtained by ordinary appellate process." Were it not for this mandate of the constitution, and for the earnestness and ability of counsel shown in the argument of the case, we would simply approve the result reached by the St. Louis court of appeals, as that result fully accords with our views, and the reasoning employed by that court is both persuasive and convincing.

2. Originally the defendant was purely a fraternal benevolent association, but in 1882 its charter was amended so as to provide "that the said supreme lodge shall have power to establish the uniform rank and endowment rank, upon such terms and conditions and governed by such rules and regulations as to the said supreme lodge may seem proper." In 1888 it adopted a constitution for the government of the endowment rank, and for the form of application for membership, and also for the certificate of membership in the endowment rank. The certificate recited that in consideration of the representations and declarations made in the application, and of the payment of the prescribed admission fee, and of the payment of all assessments and dues as required, and of full compliance with all laws governing the endowment rank "now in force or that may hereafter be enacted by the Supreme Lodge, Knights of Pythias of the World," and of the member being in good standing at the time of his death, the board of control of the endowment rank, Knights of Pythias of the World, would pay to the beneficiary named in the certificate a specified sum of money: "provided, however, that if, at the time of death of...