Warner v. Modern Woodmen of America
| Decision Date | 18 June 1906 |
| Parties | WILLIS WARNER, Appellant, v. MODERN WOODMEN OF AMERICA, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. Howard Gray, Judge.
AFFIRMED.
F. W Reed and Shannon & Shannon for appellant.
(1) Officers of the local subordinate lodges, or camps, of the defendant society are its agents. McMahon v Maccabees, 151 Mo. 522; Frame v. W. O. W., 67 Mo.App. 127. (2) If plaintiff is prevented from completing his contract by any unwarranted act or default of defendant he may recover as if the contract were completed. Jarrell v. Farris, 6 Mo. 159; Little v. Mercer, 9 Mo 218; McCullough v. Baker, 47 Mo. 401; Baker v. Railroad, 19 Mo.App. 321; Baker v. Railroad, 34 Mo.App. 98. (3) Forfeitures are not favored, and laws, rules and stipulations relative thereto will, if possible, be so construed as to avoid a forfeiture, and the deceased, being in suspension more than sixty days, but less than six months, was only required, "if in good health," to furnish "a certificate of good health from his camp physician" and to "pay all arrearages of every kind." Connelly v. Ben. Soc., 43 Mo.App. 283; McFarland v. Accident Assn., 124 Mo. 204; 17 Am. and Eng. Ency. Law, 14, 20. (4) Deceased made payment to the clerk of defendant's local camp, of which he was a member, at the moment of depositing a money order therefor in the mail. Kenyon v. Mut. Aid Assn., 122 N.Y. 247; McMahon v. Maccabees, 151 Mo. 522. (5) Deceased having furnished a certificate of good health, whether or not he was in good health at time of remitting his dues and assessments was a question for the jury. Boward v. Bankers Union, 94 Mo.App. 451-2.
Benj. D. Smith, Thomas Hackney and Barbour & McDavid for respondent.
(1) This is not a question of the forfeiture of the membership and the policy held in the order. It is a question whether a membership and policy, admitted to have been previously forfeited, has been restored to life and force. (2) It being admitted that the deceased had been legally and regularly suspended more than sixty days prior to his death, he could only have been reinstated by complying with the by-laws relative to reinstatement, and particularly with section 52 of such by-laws. This he did not do. McLaughlin v. Supreme Council (Mass.), 86 N.E. 344; Andette v. L' Union of St. Joseph (Mass.), 59 N.E. 668; Lyon v. Supreme Assembly, 26 N.E. 236; Graves v. M. W. A. (Minn.), 89 N.W. 6; Elder v. Grand Lodge (Minn.), 82 N.W. 987; Smith v. Supreme Lodge, etc. (Iowa), 99 N.W. 552; W. O. W. v. Rothschild (Texas), 40 S.W. 553; A. O. U. W. v. King (Ind.), 38 N.E. 352; Supreme Lodge v. Keener (Texas), 25 S.W. 1084; Joyce on Ins., sec. 1276; Bacon on Ins., sec. 3858; Harvey v. Grand Lodge, 50 Mo.App. 472. (3) The certificate given by Dr. Roper did not comply with section 52 of the by-laws in evidence. (a) Because no medical examination was in fact made. (b) Because such examination was not approved by the head physician. Both of these things were requisite to reinstatement, which fact Dr. Warner knew. Dr. Roper had no right to waive any requirement of the by-laws, and neither the deceased nor his beneficiaries can claim any benefits because of such attempted waiver. Lloyd v. M. W. A., 113 Mo.App. 19; Boyce v. Royal Circle, 99 Mo.App. 349; Lavin v. A. O. U. W., 104 Mo.App. 1; Borgraffe v. Knights of Honor, 22 Mo.App. 141; Chadwick v. Order of Triple Alliance, 56 Mo.App. 463; Harvey v. Grand Lodge, 50 Mo.App. 477; McMahan v. Maccabees, 151 Mo. 522; Smith v. W. O. W., 179 Mo. 136; Lyon v. Royal Society, etc., 26 N.E. 236; Modern Woodmen v. Tevis, 117 F. 369. (4) The peremptory instruction given by the court at the close of plaintiff's evidence was proper for the reason that the court could not have permitted any verdict rendered for plaintiff on such evidence to stand. Warner v. Railroad, 178 Mo. 125; Asphalt Co. v. Transit Co., 102 Mo.App. 469; Bank v. Railroad, 98 Mo.App. 330; Pope v. Boyce, 98 Mo. 527; Hite v. Railroad, 130 Mo. 132.
--The cause of action set forth in the petition is to enforce the payment of a benefit certificate issued by the defendant to Dr. J. A. Warner, who died at about twelve o'clock m. February 16, 1904, at Reeds, Missouri, his place of residence. The certificate was issued in April, 1901, for $ 1,000, payable on the death of the insured to his two daughters, the plaintiff being their assignee. The deceased failed to pay his assessment in November, 1903, and thereby, admittedly, became suspended in accordance with the by-laws of the association, from and after December 1, 1903. He was a member of the local camp of the defendant's order at Sarcoxie, Missouri, and was subject to be reinstated by complying with section 52 of defendant's by-laws. The question for our consideration is, was he restored as a member of the association prior to the time of his sickness and death? Dr. Roper, who resided at Sarcoxie and was camp physician of Strawberry Camp at Sarcoxie, on February 9, 1904, went to the town of Reeds for the purpose of visiting a sick patient with deceased. They were together on that day for about three hours; at two o'clock, the end of the time, Dr. Roper returned to Sarcoxie. On or about February 11th, Dr. Roper received from the deceased a letter asking for a health certificate, and stating that he had forgotten to mention the matter to him when they were together previously. He at once wrote the following certificate:
Dr Roper mailed this certificate on the day it was written to Dr. Warner at Reeds, but it appears that it did not reach him until late on Saturday, February 13th. On the evening of the next day, Dr. Warner was unwell and went to bed and from that time until his death he kept his room. On the next day, the 14th of February, plaintiff, the father of the deceased, bought a money order of the amount of $ 3.50 and mailed it to the clerk of the camp at Sarcoxie, which reached said clerk on the morning of February the 15th. On the morning of the last-named day Dr. Wise of Carthage was called in professionally to see deceased. He went to see him again about noon of the next day, but when he arrived Dr. Warner was dead. There is nothing to show that on the day Dr. Warner received the certificate of good health he was in other than good health. It was shown upon the part of plaintiff that from the time deceased kept to his room he was not confined generally to his bed, but was up part of the time, talked to his friends and prescribed for his patients up to within fifteen minutes of his death.
Section 52 of the by-laws is as follows, omitting certain parts: "A beneficial member in suspension for more than sixty days and less than six months, on account of non-payment of assessments, fines or dues, if in good health . . . may be reinstated upon furnishing a certificate of good health from his camp physician . . . upon form prescribed by the executive council, after medical examination by him made, duly approved by the head physician, and upon payment of all arrearages of every kind. . . ." Under this section, the deceased was entitled to stand as reinstated if in good health upon doing certain things, viz.; by furnishing a certificate of the medical examiner of his camp as to his good health, after medical examination by him made, duly approved by the head physician of the order, and the payment of all arrearages to the association.
Do the facts show that deceased complied with the by-law in question? As it was a part of the contract of insurance, its provisions should have been substantially complied with. It is an admitted fact that the medical examiner made no examination of the deceased, and did not know his condition of health at the time he made the certificate. It is however, urged that the medical doctor waived such examination. In support of this view, we are cited to a number of cases, some of which we will notice. In Cauveren v. Ancient Order of Pyramids, 98...
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