Williams v. Charleston Burial Assn.

• Decision Date: 21 June 1934
• Docket Number: No. 5381.,5381.
• Citation: 73 S.W.2d 351
• Parties: DELLA WILLIAMS, ADMX., RESPONDENT, v. CHARLESTON BURIAL ASSOCIATION, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

73 S.W.2d 351

DELLA WILLIAMS, ADMX., RESPONDENT, v. CHARLESTON BURIAL ASSOCIATION, A CORPORATION, APPELLANT.

No. 5381.

Springfield Court of Appeals. Missouri.

June 21, 1934.

Appeal from Circuit Court of Mississippi County. — Hon. Frank Kelley, Judge.

AFFIRMED.

J.C. McDowell, W.E. Coffer and Jos. A. Lutz for appellant.

T.B. Russell for respondent.

ALLEN, P.J.

Respondent concedes that appellant's statement in this court fairly stated the case, except, in omitting to state that respondent in her original petition alleged that the burial certificate out of which this controversy arose, was in the possession of appellant at the time suit was filed before the justice of the peace.

The statement of appellant, pertinent to the issue, is in substance as follows:

STATEMENT.

Plaintiff, individually sued in the justice court, on a burial certificate previously issued to her sister, the deceased. The verdict of the jury was for plaintiff, and defendant appealed to the circuit court, where respondent, by leave, amended her petition and proceeded with her suit, as administratrix of her sister's estate. Appellant refused to further appear for reasons hereinafter stated. Judgment by default, was rendered against appellant and after judgment, appellant filed a motion to set aside the same, which was overruled and the case appealed to this court.

In support of the motion to set aside the default judgment, appellant offered in evidence the petition and answer in the justice court, the justice transcript, the demurrer in the circuit court and the amended petition.

The defendant is a corporation, organized and maintained for the purpose of providing for and issuing to each member a burial certificate, entitling such member to burial services and supplies to a stipulated amount. Vioda Parks, deceased, was accepted as a member and paid the fee required, but it is claimed by defendant, in its answer that she made certain false warranties, as to her age and the state of her health, and thereby did not in law, ever become entitled to benefits. The defendant claimed to have tendered to the plaintiff after the death of Vioda Parks, a cash sum equaling the membership fee. Liability was denied and suit was brought by respondent for $150, the amount of burial benefit provided for in said certificate, for which payment was refused because of alleged false warranties as to being under sixty-five years of age, when it is alleged that she was over sixty-five years of age and that she was in good health, when it is alleged she was in the last stages of pulmonary tuberculosis when she signed the application for membership in the defendant association. Respondent, her sister, brought this suit in March, 1933, and upon defendant's appeal to the circuit court there filed her amended petition, as administratrix of deceased, where appellant refusing to further appear, respondent was awarded a default judgment.

Respondent's original petition before the justice of the peace was as follows:

"Plaintiff says that she is a sister of one Vioda Parks, deceased; that the said Vioda Parks died on or about the twenty-third day of March, A.D. 1933; that defendant is a corporation, organized and existing under the laws of the State of Missouri, and more particularly Article 10, Chapter 32, Revised Statutes of 1929, and amendments thereto, with power to sue and be sued as such; that on or about the eleventh day of March, last, this plaintiff made application to defendant for and on behalf of the said Vioda Parks, for membership in defendant association; that thereafter on or about March 11th, defendant issued to the said Vioda Parks a certificate of membership in said association, which certificate is in words and figures as follows, to-wit:

"`The Charleston Burial Association, of Charleston, Missouri.

"`This is to certify that Vioda Parks having paid the required membership fees, and having designated and elected to take a burial benefit Class C, not exceeding $150 and further qualified by promising to be loyal to said Association and governed by its By-Laws, is entitled to this CERTIFICATE OF MEMBERSHIP, in the Charleston Burial Association, of Charleston, Missouri, and to all the benefits of the Association as set forth in the By-Laws, so long as she shall remain a member thereof.

"`In Witness Whereof, the signature of the Secretary-Treasurer is hereunto affixed at Charleston, Missouri, this 12th day of March, 1933.

                         "`C.B. WATSON, "`Secretary-Treasurer.'"
                

Alleging also that the said certificate was in defendant's possession, and concluding with a prayer for judgment.

Upon a change of venue granted defendant, to W.D. Cain, Justice of the Peace, appellant filed its answer as follows:

"ANSWER.

"Now comes the defendant and states that plaintiff has no authority to bring this suit; that at the time of the taking out of the policy herein sued on the assured warranted and represented that she was sixty-three years of age and in truth and fact she was over the age of sixty-five years, which she knew. And at the time of the taking out of the policy sued on the assured warranted and represented that she was in fair health, meaning that her health was reasonably good, when in truth and fact she was then and had been for a long time suffering from and had pulmonary tuberculosis which she well knew and which made the assured uninsurable in this association, and at the time of the taking out of the policy herein sued on the assured warranted and represented that she was not being treated by a physician for any disease or ailment, when in truth and in fact she had been treated by a physician for several months, and since the twenty-first day of February, 1933, next preceding the date of the application for insurance in the defendant, The Charleston Burial Association; that there was paid as premiums on the policy sued on herein the sum of fifty cents, which sum defendant hereby tenders and pays into court for the parties entitled thereto.

                         "J.C. McDOWELL and "Jos. A. LUTZ
                                  "Attorneys for Defendant."
                

Upon a trial by jury, the following verdict was rendered:

"We, the jury, find for the plaintiff, Delia Williams, in the sum of $150."

From which defendant appealed to the circuit court. In the circuit court defendant filed a demurrer to plaintiff's petition, as follows:

"First: That plaintiff's petition fails to state facts sufficient to constitute a cause of action in this case.

"Second: Plaintiff's petition shows on its face that plaintiff herein is not authorized to bring this suit, inasmuch as she does not sue as the executor, administrator or personal representative of deceased."

Before a ruling thereon, plaintiff asked for and was granted leave to amend her original petition before the justice of the peace, which was granted and done by filing her petition as administratrix of the estate of Vioda Parks, deceased, as follows:

"IN THE CIRCUIT COURT OF MISSISSIPPI COUNTY, MISSOURI.

"Delia Williams, Administratrix of the Estate of Vioda Parks, Deceased, Plaintiff. vs. "The Charleston Burial Association of Charleston, Missouri, a corporation, Defendant.

"Plaintiff says that on or about the twenty-third day of March, 1933, Vioda Parks departed this life and that thereafter, to-wit, on the tenth day of April, 1933, letters of administration on the estate of Vioda Parks were duly granted to Delia Williams, the plaintiff, by the Probate Court of Mississippi County, in the State of Missouri, and that thereupon the plaintiff duly qualified as such administratrix. Plaintiff for her cause of action says that defendant is a corporation organized and existing under the laws of the State of Missouri, and particularly Article 10, Chapter 32, Revised Statutes of 1929, and amendments thereto, with power to sue and be sued as such; that on or about the eleventh day of March, last, this plaintiff made application to defendant for and on behalf of the said Vioda Parks for membership in defendant association; that thereafter on or about March 11th, defendant issued to the said Vioda Parks a certificate of membership in said association, which certificate is in words and figures as follows, to-wit." Reciting the same contract stated in the original petition, filed before the justice and asking judgment. Appellant recites in the abstract of the record, in substance, as follows:

Thereafter on July 18, 1933, during the same term at which the plaintiff's amended petition was filed in the cause the same was called for trial; that defendant, appellant, insisted that the petition as amended, was a "substitution of cause of action," and that the case was not triable until the next term of court and new service was necessary; made no appearance and judgment was rendered for respondent, in the sum of $150 with interest in the sum of $3. At the same term of the circuit court, to-wit on July 20, 1933, appellant filed its motion to set aside said judgment, which was by the court overruled; and defendant appealed to this court.

Appellant, in its brief, specifies five assignments of error, omitting the recital of the motion to set aside the default judgment, we shall consider the assignments of error, which are as follows:

I. Permitting plaintiff to take judgment by default.

II. To take judgment at the July Term, 1933, of said circuit court.

III. In rendering judgment by default, without service of summons.

IV. Permitting a substitution of causes of action.

V. Overruling the motion of the defendant to set aside the...