Traughber v. Knights of Maccabees of the World

• Decision Date: 06 March 1933
• Parties: IDA TRAUGHBER, ADMX., F. M. TRAUGHBER, DECEASED, RESPONDENT, v. KNIGHTS OF THE MACCABEES, APPELLANT
• Court: Kansas Court of Appeals

57 S.W.2d 783

227 Mo.App. 792

IDA TRAUGHBER, ADMX., F. M. TRAUGHBER, DECEASED, RESPONDENT, v. KNIGHTS OF THE MACCABEES, APPELLANT

Court of Appeals of Missouri, Kansas City

March 6, 1933

Appeal from the Circuit Court of Boone County.--Hon. H. A. Collier Judge.

Judgment affirmed.

Don C Carter, M. H. Pemberton and N. T. Gentry for respondent.

John B McIlwain for appellant.

OPINION

SHAIN, P. J.

This is a law action for money had and received. The action was instituted in the Circuit Court of Boone County, Missouri, April 23, 1929.

In this action, Francis M. Traughber, plaintiff below, respondent herein seeks to recover from the order of Knights of the Maccabees of the World, defendant below, appellant herein, benefits past due and for return of certain assessments paid by him, but which he claims was illegally exacted and accepted from him.

The cause was tried in the Circuit Court of Boone County before the Hon. H. A. Collier, Judge, jury being waived. Trial was had July 29, 1929. After hearing the evidence and argument, the court took the cause under advisement. Thereafter, at the same time, cause while under advisement was continued to the regular October Term of said court.

During the October Term of said court to-wit; on the 28th day of October, 1929, the court announced its findings, verdict and judgment. The judgment of the court was for the respondent, plaintiff below, in the sums of $ 1,000 on old age endowments and for $ 206 for excess premiums, totaling $ 1206.

A motion for a new trial was duly filed, considered and overruled and an appeal duly prosecuted and cause was sent to the Supreme Court.

Based upon the ruling of the Supreme Court in companion case to-wit; Early v. Knights of Maccabees of the World, 48 S.W.2d 890, cause by stipulation was duly sent to this court.

The facts as disclosed by the record are; that on or about the 27th day of October, 1892, the appellant issued to the respondent a full and unconditional certificate of membership in the appellant's society, whereby it insured the respondent on assessment basis for an amount not to exceed $ 2000.

This certificate contained the following clause to-wit:

"In case of permanent or total disability, or upon attaining the age of seventy years, he will be entitled to receive such part of said endowment as provided in the laws of the order which are now in force, or which may hereafter be adopted by the Supreme Tent."

The laws in force at the time the certificate was issued had the following provision to-wit:

"Disability and Old Age Benefits. Sec. 198.--Any member holding a certificate of endowment who shall become totally and permanently disabled from any cause, not the result of his own illegal act, to perform or direct any kind of labor or business, or, who shall arrive at the age of seventy years, and who has paid all legal dues and assessments since the date of his initiation to the date of such disability or period of life, shall be entitled to receive from the endowment fund annually one-tenth part of the sum for which his endowment certificate is issued."

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