Wilhelm v. Security Ben. Ass'n

• Decision Date: 07 December 1936
• Docket Number: No. 18433.,18433.
• Citation: Wilhelm v. Security Ben. Ass'n, 104 S.W.2d 1042 (Mo. App. 1936)
• Parties: WILHELM v. SECURITY BEN. ASS'N.
• Court: Missouri Court of Appeals

104 S.W.2d 1042

WILHELM v.SECURITY BEN. ASS'N.

No. 18433.

Kansas City Court of Appeals. Missouri.

December 7, 1936.

Rehearing Denied April 5, 1937.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by Olive G. Wilhelm against the Security Benefit Association.Judgment for plaintiff, and defendant appeals.

Affirmed.

A. W. Fulton, of Chicago, Ill., Michaels, Blackmar, Newkirk, Eager & Swanson, of Kansas City, and Stringfellow & Garvey, of St. Joseph, for appellant.

John B. Frederick and Elliott & Crouse, all of St. Joseph, for respondent.

SPERRY, Commissioner.

Plaintiff had a judgment, from which the defendant has appealed.The action is based upon a written instrument which the plaintiff alleged was a policy of life insurance issued to Arthur F. Geiler and in which plaintiff was nominated as beneficiary.The answer alleged that defendant was a fraternal benefit society, organized in Kansas and duly licensed in Missouri; that the certificate in suit was void because Geiler, in his application therefor, said the beneficiary, Olive G. Wilhelm, was related to him as dependent; that in truth said beneficiary was not at any time dependent upon Geiler, nor was Geiler dependent upon the plaintiff, "at the time said benefit certificate was issued or thereafter"; that the answer in the application concerning the relationship between Geiler and plaintiff was a warranty, was incorrect, and therefore the certificate was void; that the death of Geiler was due to suicide, and pleaded sections of its constitution and bylaws.In the application Geiler said that plaintiff was related to him "as dependent."The plaintiff testified in effect that she was not at any time dependent on Geiler and that Geiler was dependent on her.The defendant argues that upon these factsplaintiff, under the laws of Missouri, was an unlawful beneficiary and therefore the certificate was void.The defendant's constitution provides that "death benefits shall be confined * * * to a person or persons dependent upon the member or upon whom the member is dependent, that it is an incorporated charitable institution. * * *" Thus, plaintiff, if Geiler were her dependent, was a proper beneficiary under the terms and provisions of defendant's organic law.The plaintiff contends that the relationship between Geiler and plaintiff, though incorrectly stated in the application and in the policy, does not affect the validity of the contract for the reason that plaintiff was a proper beneficiary under the provisions of the defendant's constitution.Defendant also contends that the policy was voided by the suicide of insured.We deem it unnecessary to determine these questions for the reason that we have concluded that plaintiff's contention that the contract issued to Geiler "subjects the association to the general insurance laws of Missouri as to that particular certificate."

It is well-settled law in Missouri that even though defendant company may be duly licensed as a "fraternal" in another state, and may have been admitted to do business as such in Missouri, yet it must come strictly under the law of Missouri governing fraternal insurance associations and make its contracts under the law.Our Supreme Court held in Ordelheide v. Modern Brotherhood of America, 268 Mo. 339, 187 S.W. 1193, 1194, that a fraternal beneficiary association chartered in Iowa and licensed in Missouri could not avail itself of the suicide defense because the policy which was issued in that case was made payable to the "legal representatives" of insured; that the right of "fraternals" to be exempt from the provisions of the general insurance laws of the state requires that such companies limit beneficiaries of such policies to certain classes of which legal representatives is not one.

In Toomey v. Supreme Lodge, K. of P., 147 Mo. 129, 48 S.W. 936, it was held that, although the defendant was a fraternal beneficiary company, yet the policy sued on was an old-line policy of life insurance and defendant company was liable just as an old-line company would be.

In Aloe v. Fidelity Mutual Life Ass'n, 164 Mo. 675, loc. cit. 686, 55 S.W. 993, 998, it was held that, although defendant was organized and chartered in Pennsylvania as an assessment company and was so licensed in this state, yet its character was fixed by the kind of policy written; and since the contract failed to show that the "benefit is in any manner or degree, dependent upon the collection of an assessment upon persons holding similar contracts," and its payment depended solely upon funds raised by fixed premiums to be paid at stated periods by the insured, it was an old-line insurance contract.

This case is quoted with approval by Judge Bland, of this court, in Wollums v. Mutual Benefit Health & Accident Ass'n, 226 Mo.App. 647, 46 S.W.(2d) 259, loc. cit. 264, in which case motion for rehearing was denied January 11, 1932.The same doctrine is laid down again by this court in Ragsdale v. Brotherhood of Railroad Trainmen, 229 Mo.App. 545, 80 S.W.(2d) 272, loc. cit. 279, a case written by Judge Trimble of this court in 1934.It has been so many times held that the character of the company and its measure of liability is determined by the policy issued and not by its name, constitution, or license, that one could cite such decisions almost ad infinitum.

The policy in the instant case does not meet statutory requirements of our fraternal beneficiary law.Section 6005, R.S.Mo.1929, Mo.St.Ann. § 6005, p. 4577), provides that before a foreign fraternal can be licensed in Missouri it must file "a copy of its contract, which must show that benefits are provided for by periodical or other payments by persons holding similar contracts."Since the contract filed must be in that form, it follows that the contract issued by the company must conform to what is filed.Any other holding, in the face of section 6005, would permit and encourage such companies, after securing a license, to sell any and all kinds of contracts without regard to their terms or character.The state would have no control of the company once it had secured its license.The policy here sued on provides...