Western Commercial Travelers' Ass'n v. Tennent

• Decision Date: 17 December 1907
• Citation: 128 Mo. App. 541,106 S.W. 1073
• Parties: WESTERN COMMERCIAL TRAVELERS' ASS'N v. TENNENT.
• Court: Missouri Court of Appeals

106 S.W. 1073

128 Mo. A. 541

WESTERN COMMERCIAL TRAVELERS' ASS'N v. TENNENT.

St. Louis Court of Appeals. Missouri.

December 17, 1907.

Rehearing Denied January 7, 1908.

1. INSURANCE — "FRATERNAL BENEFICIARY ASSOCIATIONS"—NATURE AND STATUS.

An insurance association which has no lodge system, ritualistic form of work, or representative form of government is not within Rev. St. 1899, § 1408 [Ann. St. 1906, p. 1111], defining a fraternal beneficiary association as a corporation, society, or voluntary association for the benefit of its members and their beneficiaries, and having a lodge system, with ritualistic form of work, and a representative form of government.

2. SAME—STATUTORY PROVISION.

An amendment adopted in 1901 (Laws 1901, p. 96) to Rev. St. 1899, § 1423 [Ann. St. 1906, p. 1118], part of the act of 1897 (page 132) relating to fraternal beneficiary associations, providing that associations of commercial travelers incorporated as fraternal benefit associations shall be subject to the provisions of the act, does not bring within its provisions a commercial travelers' association organized in 1878 without a lodge system or representative form of government, which never amended its charter, or otherwise took advantage of Rev. St. 1899, § 1409 [Ann. St. 1906, p. 1113], authorizing associations previously organized to do business under the act on complying with its provisions, nor made reports to the state superintendent of insurance, as required by section 1411 [Ann. St. 1906, p. 1114].

3. SAME.

A commercial travelers' association organized in 1878 which did not comply with the act of 1897 (Laws 1897, p. 132), relating to fraternal beneficiary associations, did not thereby forfeit its charter or become an old-line insurance company, but is a mutual benefit association doing business on the assessment plan, and confined in the issuance of certificates of insurance to classes named in the charter.

4. SAME—BENEFICIARIES—PROVISIONS OF CONSTITUTION OF ASSOCIATION.

The mother of a member of a mutual benefit association not living with insured, but with her husband, an able-bodied man 67 years old, who had recently failed in business, was not a member of insured's family nor a dependent on him because of gifts amounting to $200 within a few months before her death, and hence was not entitled to a benefit under a provision of the association charter and of Laws 1879, p. 65, restricting the beneficiaries to the families, widows, or other dependents of members.

5. SAME—FAILURE OF BENEFICIARIES.

Under a provision of a mutual benefit association constitution that, if all beneficiaries designated in a certificate die, the benefit shall be paid to the heirs of the member, and under the statute of distributions, where a member canceled a valid designation of beneficiary and made an invalid one, his heirs were entitled to the benefit.

6. APPEAL—RECORD—QUESTIONS PRESENTED —EXCLUDED EVIDENCE.

Where the record fails to show what excluded testimony would have been, the appellate court cannot determine whether it was relevant, or whether its exclusion was prejudicial.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Bill of interpleader by the Western Commercial Travelers' Association against Louisa H. Tennent and others. From a judgment in favor of Christina May Tennent and another, Louisa H. Tennent appeals. Affirmed.

Johnson & Richards, for Louisa H. Tennent and Christina May Tennent. John V. Denvir, Jr., for the Western Commercial Travelers' Association.

BLAND, P. J.

The Western Commercial Travelers' Association is an insurance corporation. Section 1, art. 2, of its charter, is as follows: "The objects of this association are: (1) To obtain as its active and honorary members a large number of white male persons, (a) of good moral character, (b) of good health, (c) who are not under 21 nor over 45 years of age, (d) who are traveling salesmen; (e) salesmen (or clerks in wholesale or manufacturing houses); or (f) buyers or salesmen for proprietors, copartners or corporations engaged in a legitimate mercantile manufacturing or commercial business, and who are proprietors, copartners, officers, directors or stockholders of corporations engaged in such business; (2) adopt, maintain and execute such plans as shall tend to the mutual benefit and protection of its members; (3) levy and collect assessments from its active members for such sums as may be necessary to provide a death loss fund for the sole purpose of the relief and aid of families, widows and orphans and other dependents of its deceased members; and (4) levy and collect from its members such sums as may be provided in its constitution and by-laws for the payment of its necessary expenses and the promotion of its objects." On May 5, 1894, John H. Tennent, Jr., became a member of the association, and it issued to him a membership certificate or policy of insurance for $4,000, payable at his death to his mother, Louisa H. Tennent. On February 8, 1896, Tennent surrendered the original certificate and took a new one, in which his wife, Christina May Tennent, was designated as beneficiary. On May 15, 1906, Tennent again changed the beneficiary, and a new certificate was issued to him in which Louisa H. Tennent, his mother, was designated as beneficiary. On May 28, 1906, Tennent died. After proofs of loss were furnished the association, Louisa H. Tennent and Christina May Tennent and John H. Tennent, a minor son of the deceased and Christina May Tennent, laid claim to the benefit fund, whereupon the association filed its bill of interpleader in the St. Louis circuit court, paid the fund into court, and asked that the claimants be required to interplead therefor. They were ordered to interplead, a guardian ad litem was appointed for John H. Tennent, Jr., and each of the claimants filed a separate interplea. Issues were raised on these interpleas by answers filed thereto. These issues were submitted to the court, who, after hearing the evidence, on the written request of Louisa H. Tennent, made a finding of the facts and rendered judgment in favor of Christina May Tennent and John H. Tennent, Jr., awarding to each one-half the fund, less certain costs which had been allowed by the court to the association. Both Louisa H. Tennent and John H. Tennent, Jr., appealed from this judgment.

The contention of Louisa H. Tennent is that the association is a fraternal beneficiary society, and that she, being a blood relative of the deceased member, is competent to take the fund as beneficiary, under the provisions of section 1408, Rev. St. 1899 [Ann. St. 1906, p. 1111]. She also contends that she is entitled to the fund by reason of the fact that she was a member of the family of the deceased member, and a dependent upon him. The other interpleaders contend that the association is not a fraternal beneficiary society; that Louisa H. Tennent was not a dependent upon the insured, was not a member of his family, and is not entitled to the fund by reason of being a blood relative of the deceased member, for the reason that blood relatives are not named as beneficiaries in the charter of the association. A fraternal beneficiary association, as defined by the statute (section 1408, Rev. St. 1899 [Ann. St. 1906, p. 1111]) is a "corporation, society or voluntary association, formed or organized and carried on for the sole benefit of its members and their beneficiaries, and * * * shall have a lodge system, with ritualistic form of work and a representative form of government," etc. The association does not fill the measure of this definition, for the reason it has no lodge system, with ritualistic form of work, nor has it a representative form of government. In Westerman v. Supreme Lodge K. of P., 196 Mo., loc. cit. 701, 94 S. W. 477, 5 L. R. A. (N. S.) 1114, the court said: "It is only essential to constitute the defendant a fraternal beneficiary association that it be organized for the benefit of its members, and not for gain or profit. It must have a representative form of government and ritualistic form of work." See, also, Baltzell v. Modern Woodmen, 98 Mo. App. 153, 71 S. W. 1071. The association was incorporated July 15, 1878, under the then laws of this state, relating to benevolent associations, and has not since amended its charter, or otherwise taken advantage of section 1409, Rev. St. 1899 [Ann. St. 1906, p. 1113], to bring itself under the act of 1897; nor has it made reports to the state superintendent of insurance, under the provisions of section 1411, Rev. St. 1899 [Ann. St. 1906, p. 1114], nor do we think it is brought under the provisions of said act by the amendment of 1901 (Laws 1901, p. 96) of section 1423, Rev. St. 1899 [Ann. St. 1906, p. 1119], which originally read as follows: "This act shall not apply to or affect grand or subordinate lodges of Masons, Odd Fellows or similar orders paying only sick disability or funeral benefits, or any association not working on the lodge system which limits its certificate holders or membership to a particular class, or to the employés of a particular town or city, designated firm, business house or corporation." The amendment of 1901 added the following to the above section: "Provided that associations of commercial travelers and those employing commercial travelers incorporated as fraternal benefit associations or societies shall in all respects be subject to the provisions of this act." The purpose of the amendment was not to legislate this class of associations who had no lodge system, with ritualistic form of work, and representative form of government, bodily into fraternal beneficiary associations, but was to take them out of the class of fraternal benefit associations whose membership is composed of persons following a particular avocation, and segregate them from that class of benefit associations whose membership is confined to members of a designated secret order, so as to enable benefit...