Wilcox v. Court of Honor

• Decision Date: 29 December 1908
• Citation: 114 S.W. 1155,134 Mo. App. 547
• Parties: WILCOX v. COURT OF HONOR.
• Court: Missouri Court of Appeals

114 S.W. 1155

134 Mo. App. 547

WILCOX v. COURT OF HONOR.

St. Louis Court of Appeals. Missouri.

December 29, 1908.

Rehearing Denied January 12, 1909.

1. INSURANCE (§ 825)—MUTUAL BENEFIT INSURANCE —ACTIONS—EVIDENCE—ISSUES.

In an action on a mutual benefit certificate providing that the order will not pay the benefits of members who commit suicide, except when committed in delirium, evidence held to require the submission to the jury of the issue whether the member was delirious when he committed the suicide.

2. INSURANCE (§ 826)—MUTUAL BENEFIT INSURANCE — ACTIONS—ISSUES—INSTRUCTIONS.

Where, in an action on a mutual benefit certificate providing that the order would not pay the benefits of members who committed suicide, except when committed in delirium, there was evidence that the member was delirious when he committed suicide, an instruction that the jury, unless they found that the member committed suicide while not in delirium, should find for plaintiff, properly submitted the issue whether the member was delirious when he committed suicide.

3. APPEAL AND ERROR (§ 171) — REVIEW — THEORY OF CAUSE IN TRIAL COURT.

Where, in an action on a mutual benefit certificate providing that the order would not pay the benefits of members who committed suicide, except when committed in delirium, the answer alleged that the member was not delirious when he committed suicide, and the reply put the allegation in issue, and the order at the trial took on itself the burden of proving that the member committed suicide and that he was not delirious at the time, the order was estopped from denying on appeal that the issue as to the delirium of the member was not in the case.

4. INSURANCE (§ 719)—MUTUAL BENEFIT INSURANCE —BY-LAWS—AMENDMENT—EFFECT.

A benefit certificate bound the member to comply with the constitution, laws and regulations of the order in force or that might be in force subsequently. His application for the certificate contained a like provision. The certificate stipulated that the order would not pay the benefits of members who committed suicide, except when committed in delirium. Held, that the agreement of the member included only such by-laws, rules, and regulations as might be adopted as should relate to his duties, conduct, occupations, and habits of life, and to the social or lodge features of the order; but the order did not have power to substitute at any time an amended by-law on the question of suicide which would change the provisions of the contract.

Appeal from Circuit Court, Monroe County; David H. Eby, Judge.

Action by Paralea Wilcox against the Court of Honor. From a judgment for plaintiff, defendant appeals. Affirmed.

R. M. Tunnel and Jas. P. Boyd, for appellant. J. H. Whitecotton and W. W. Barnes, for respondent.

BLAND, P. J.

Defendant is a fraternal benefit association, incorporated under the laws of the state of Illinois and authorized to do business in the state of Missouri under the laws thereof. On July 6, 1897, defendant admitted George W. Wilcox, of Monroe county, Mo., as a member of the order, and issued to him its certificate No. 20,547, by which it promised to pay his beneficiary, Paralea Wilcox, his wife, the sum of $1,000 on the death of the insured. Wilcox paid all his dues and assessments, and otherwise complied with the laws of the order, until March 21, 1906, on which date he died. Notice of his death and proofs of loss were duly furnished defendant, and payment of the $1,000 insurance demanded. Defendant tendered plaintiff $400 in full satisfaction of its liability under the certificate. Plaintiff refused to accept said tender, and this action was brought to recover the full amount of the policy. The petition is in the usual form in such cases.

As a special defense it is alleged in the answer that George W. Wilcox made application for a certificate of membership and insurance, in which application is the following clause: "I agree to make punctual payment of all dues and assessments for which I may become liable, and to conform in all respects to the constitution, laws, rules, and usages of this order now in force, or which may hereafter be adopted by the Supreme Court thereof." Further answering, defendant states that the certificate of insurance contains the following agreement: "This certificate was issued and made a liability upon the order to the persons named within, upon the expressed conditions that the insured shall comply with the constitution, laws, rules, and regulations of the order, in force, or that may be in force hereafter, and that the statements made in the application for this certificate are true. This order will not pay the benefits of members who commit suicide, whether sane or insane, except it be committed in delirium resulting from illness, or while the member is under treatment for insanity, or has been judicially declared to be insane; but in all cases not within said exceptions the amount of money contributed to the benefit fund by such members shall be returned, and shall be paid to the beneficiaries out of said fund in lieu of the benefit, or if said application for membership or medical examination, or any part of them, shall be found in any respect untrue, then this certificate shall be null and void, and of no effect, and all moneys which shall have been paid, and all rights which have accrued under this certificate, shall be absolutely forfeited." The answer also states: That the following bylaw was in effect on the date the certificate was issued: "This order will not pay the benefits of members who commit suicide whether sane or insane, except it be committed in delirium resulting from illness, or while the member is under treatment for insanity, or has been judicially declared to be insane; but in all cases not within said exceptions, the amount of money contributed to the benefit fund by such members shall be returned, and shall be paid to the beneficiaries out of said fund in lieu of the benefit." That on May 28, 1903, this by-law was amended to read as follows: "If a benefit member commits suicide, whether sane or insane, voluntary or involuntary, there shall be payable to the beneficiaries entitled thereto 5 per cent. of the face of the certificate for each year he shall have been continuously a member of the society, and after 20 years of continuous membership the certificate shall be payable in full." That this bylaw (No. 145) was in force on the date of Wilcox's death; and alleged that he committed suicide by shooting himself in the head with a revolver; that at the time he committed suicide he was not in delirium resulting from illness, was not under treatment for insanity, nor had he been judicially declared insane; and stated that under the provisions of the by-law, as amended, plaintiff was entitled to 5 per cent. of the amount of the insurance for each of the eight years deceased had been a member of the order, or $400, which the answer alleged had been tendered plaintiff. Tender for judgment of this amount was made in the answer

The reply was as follows: "Comes now the plaintiff herein, and for her reply to defendant's first amended answer, filed herein, admits the organization and incorporation of defendant under and...