White v. United Brothers and Sisters of Mysterious Ten.
| Decision Date | 22 November 1915 |
| Docket Number | No. 11761.,11761. |
| Citation | 180 S.W. 406 |
| Parties | WHITE v. UNITED BROTHERS AND SISTERS OF MYSTERIOUS TEN. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Saline County; Samuel Davis, Judge.
"Not to be officially published."
Action by Harry White against the United Brothers and Sisters of Mysterious Ten. Judgment for plaintiff, and defendant appeals. Affirmed.
C. H. Calloway, of Kansas City, for appellant. Reynolds & James, of Marshall, for respondent.
Plaintiff's action is on a benefit certificate of insurance on"the life of his daughter. He recovered judgment in the circuit court.
The answer admitted the issuance of the certificate, and that plaintiff is the beneficiary, and that plaintiff's daughter, to whom the certificate was issued, was a member of the "Grand Lodge in good standing until the 6th day of June, 1914, at which time she was suspended for nonpayment of dues, burial and assessment, in accordance with the constitution and by-laws of 1908." (Here the part of the constitution and by-laws applicable are copied.)
There was no proof of toe suspension alleged. An attempt was made to prove the constitution and by-laws, but it was ruled out, and no point is made here on that ruling. Defendant in this court endeavors to defend on another theory, viz., that; "The defendant does not have to rely on its bylaws to suspend a member for delinquency," etc.
Defendant must defend under its answer, and it must not depart in this court from the theory in the trial court.
The certificate provides:
It "shall take effect from the date thereof, providing the member at that time is alive and in good health, and shall continue in force so long as the membership in the aforesaid lodge or temple and the relation of said lodge and temple to the Grand Lodge remains unimpaired."
The burden is on the defendant to prove the forfeiture. Gruwell v. Knights and Ladies, 126 Mo. App. 496, 104 S. W. 884; 29 eye. 232.
The judgment under the pleading and evidence could not have been otherwise than as rendered.
It is affirmed. All concur.
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