Watkins v. Brotherhood of American Yeomen

• Decision Date: 05 April 1915
• Parties: ELIZABETH WATKINS, Respondent, v. BROTHERHOOD OF AMERICAN YEOMEN, Appellant
• Court: Kansas Court of Appeals

176 S.W. 516

188 Mo.App. 626

ELIZABETH WATKINS, Respondent, v. BROTHERHOOD OF AMERICAN YEOMEN, Appellant

Court of Appeals of Missouri, Kansas City

April 5, 1915

Appeal from Jackson Circuit Court.--Hon. A. C. Southern, Judge.

AFFIRMED (conditionally).

Ed. E Aleshire and E. C. Corry for appellant.

(1) The court erred in permitting plaintiff to introduce any evidence for the reason that the certificate sued on was never filed in the court and no legal verified copy of the same filed. The pretended verified copy was sworn to by John G. Park, one of plaintiff's attorneys (Sec. 1841, R. S. 1909, does not permit this). Gewe v. Hanszen, 85 Mo.App. 136. (2) The court at the close of all the evidence erred in overruling defendant's demurrer and directing a verdict for defendant. The entire evidence shows undisputed that the assured's brother-in-law was allowed to pay the $ 7.20 because Mr. Records, the correspondent, relied upon his statement that they had September receipt and that his brother-in-law was in good health. The following authorities practically cover every phase of the case: Fraser v Aetna Life Ins. Co., 114 Wis. 510; Richards v. Maine Benefit Assn., 95 Me. 99; Lewis and wife v. Phoenix Mutual, 44 Conn. 72; Harris v. Equitable Life, 64 N.Y. 196; Garbutt v. Citizens Life Endowment Assn., 84 Ia. 293; Scoville et al. v. Royal Highlanders, 92 N.W. 206; Smith v. Woodmen of the World, 179 Mo 119; Warner v. Modern Woodmen, 119 Mo.App. 222; Boward v. Bankers Union, 94 Mo.App. 442; Porter v. Loyal Americans of the Republic, 167 S.W. 578; Day et al. v. Supreme Forest Modern Circle, 156 S.W 721, 174 Mo.App. 260; Boyce v. Royal Circle, 99 Mo.App. 349. (3) Instruction 15 on waiver was not not authorized by the evidence and does not properly submit the question of waiver. Wise v. Wabash, 135 Mo.App. 230; State v. Edwards, 203 Mo. 528.

Park & Brown for respondent.

(1) Appellant's first point is puerile. Copy of the certificate was attached to the petition and verified by plaintiff's attorney. R. S. 1909, sec. 1830; State ex rel. v. Henderson, 86 Mo.App. 482; Burdsall v. Davies, 58 Mo. 138; Graham v. Morstadt, 40 Mo.App. 333. (2) The court very properly overruled defendant's demurrer at the close of all the evidence and submitted the case to the jury on the questions of waiver of forfeiture. The forfeiture relied on by defendant was clearly waived. By the custom or course of dealing of allowing a large percentage of members to become delinquent without enforcing the penalties of suspension and forfeiture. Keys v. Natl. Council, 174 Mo.App. 671; Cline v. W. O. W., 111 Mo.App. 607; Andre v. Woodmen, 102 Mo.App. 377; James v. Ins. Co., 148 Mo. 1; Burke v. A. O. U. W., 136 Mo.App. 450; Burchard v. W. C. T. Assn., 139 Mo.App. 606; Godwin v. K. & L. of S., 166 Mo.App. 289. (3) It is immaterial whether insured knew of the waiver. Galvin v. Knights, 169 Mo.App. 511; Stiepel v. Life Assn., 55 Mo.App. 233. (4) By accepting dues and retaining them after full knowledge of the facts. Keys v. Natl. Council, 174 Mo.App. 671; James v. Ins. Co., 148 Mo. 1; Andrus v. Ins. Co., 168 Mo. 151; Wichman v. Ins. Co., 120 Mo.App. 51; Reed v. Bankers Union, 121 Mo.App. 419; Burke v. A. O. U. W., 136 Mo.App. 450; Francis & Hunter v. A. O. U. W., 150 Mo.App. 347; Zahm v. Frat. Union., 154 Mo.App. 70; Godwin v. Ins. Co., 166 Mo.App. 289; Bell v. Ins. Co., 166 Mo.App. 390. (5) By failure to mail notice of suspension as required by laws. There was no testimony that notice had been mailed. Seehorn v. Knights, 95 Mo.App. 233; Schen v. Grand Lodge, 17 F. 214; Meisenbach v. Maccabees, 140 Mo.App. 86. (6) Testimony by the wife (beneficiary) that no notice of suspension was received makes a question for the jury. Meisenbach v. Maccabees, 140 Mo.App. 86.

OPINION

TRIMBLE, J.

Plaintiff sues upon a certificate of insurance, issued to her husband by the defendant, a fraternal beneficiary association.

Defendant says the husband had forfeited his insurance for nonpayment of dues within the time required by the by-laws of the order and the terms of the certificate. Plaintiff contends that these provisions in the insurer's favor are waived and cannot now be relied upon.

This issue was tried and the jury found for plaintiff. Defendant has appealed.

The certificate was issued March 12, 1912. Watkins, the insured, was to pay every month the sum of $ 1.80 which, for brevity, we shall term "dues." This was to be collected by the secretary of the local lodge, called the correspondent, and by him remitted to the home office, or Chief Correspondent, so as to reach there not later than the 10th of the month following. Under section 154 of the by-laws these dues must be paid by midnight of the last day of the month, if not so paid, the certificate became null and the payments thereon forfeited. The certificate also provided that delinquency in this regard rendered the certificate void. But by other sections such suspended member could be reinstated within sixty days from date of suspension by merely paying all dues, including those for the current month, provided he was in good health at the time of reinstatement. If, however, he was suspended more than sixty days and less than six months, he was required to furnish a health certificate to be approved by the chief medical director.

The insured did not pay the dues for the months of September and October, 1912. On Saturday morning November 30, 1912, insured's wife gave her brother, A. C. Ward, who was living at the same house, money with which to pay her husband's dues. The husband was working as a mail carrier in the Westport District and could not attend to it himself. Ward, the brother, neglected to pay the dues to the local secretary on that day, but did so about one o'clock the following Monday, December 2. As to what took place when the money was paid, the parties differ. Ward says he asked to pay Watkin's dues and was told that he was suspended for nonpayment of the dues for September, whereupon he told the secretary he thought that month was paid as they had a receipt therefor. He says the secretary said to him that he could pay the September dues with the others and if he had paid that month to bring in his receipt therefor and they would either refund it to insured or give him credit for the January dues; that thereupon Ward paid for four months, September, October, November and December, amounting to $ 7.20 and received a receipt therefor. He admits that the secretary asked him if Watkins was in good health and that he told him he was. The secretary says he asked him why Watkin's didn't come himself and that Ward replied he was a mail carrier and did not come in till late. The secretary also says he told him Watkins could not be reinstated if he was not in good health but that Ward told him he was; that as Ward claimed they had a receipt for September, (which, if true, would make the payment then sought to be made within the sixty days, and therefore entitled insured to be reinstated without a health certificate), he accepted the dues for the four months of September, October, November and December, promising that if they brought a September receipt in, he would apply the payment for that month on the January dues.

Ward then left and went to the theater that afternoon. On his return home in the evening he learned that Watkins, while on his route carrying the mail that day had received a fall about ten o'clock in the morning which fractured his skull and rendered him unconscious. He had been taken about eleven o'clock to a hospital in the city where he remained in that condition till his death about 2 a. m. of the next day, December 3. Ward says he knew nothing of the accident at the time he was in the secretary's office and did not learn of it until he reached home that night.

While Ward's claim that he did not know of his brother-in-law's fall may be open to suspicion, yet it is not wholly improbable. There is no evidence to contradict it nor other ground upon which a trier of the fact would be justified in not accepting his testimony. The case is not one where the payment was made and the reinstatement obtained by fraud, that is, we cannot say there was fraud as matter of law. Indeed, if, by the custom of doing business, members were allowed after the lapse of sixty days to pay their dues without furnishing a certificate of health, then the element of fraud does not enter into the case. So that the question involved is only one of waiver or no waiver.

As a matter of fact Watkins had not paid his dues for September as Ward thought he had. He had paid his August dues on September 4, and received a receipt dated on that day. It was this receipt Ward and plaintiff's wife had thought was the September receipt. By the strict terms of the policy and of section 154 of the by-laws, Watkins, ipso facto stood suspended when he failed to pay the August dues by midnight of the 31st of that month. But his money had been received, September 4th, without enforcing the suspension, or making any note thereof. And, according to defendant's own evidence his suspension for the nonpayment of the September dues was not noted on the books until October 1, 1912. The work of collecting the dues was left entirely to the secretaries or correspondents of the local lodges. They were not required to report the dues collected for each month until the tenth of the month following. These reports were not arranged so as to show when the member paid his dues, whether before the end of the current month or during the ten days of the next month. And the secretaries were in the habit of sending in all sums paid up to the 10th even if they were for dues payable and due on the last day of the preceding month. The record of suspensions was kept in...