Williams v. Modern Woodmen of America

• Decision Date: 27 June 1922
• Docket Number: No. 17598.,17598.
• Parties: WILLIAMS et ex. v. MODERN WOODMEN OF AMERICA.
• Court: Missouri Court of Appeals

243 S.W. 272

WILLIAMS et ex. v. MODERN WOODMEN OF AMERICA.

No. 17598.

St. Louis Court of Appeals. Missouri.

June 27, 1922.

Rehearing Denied July 11, 1922.

Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.

"Not to be officially published."

Action by William D. Williams and wife against the Modern Woodmen of America. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Truman Plantz, of Warsaw, Ill., John E. Turner, of St. Louis, and George E. Davis, of Rock Island, Ill., for appellant.

Earl M. Pirkey, of St. Louis, for respondents.

BIGGS, C.

Following the verdict of a jury there was a judgment for plaintiffs for $2,650 in an action upon a certificate issued by defendant, a fraternal beneficial association, upon the life of plaintiffs' son, George E. Williams. Defendant appeals, making the contention: (1) That the court erred in failing to peremptorily instruct the jury to find for the defendant on the alleged ground that the verdict and judgment is contrary to the evidence and is not supported by any competent evidence; and (2) the court erred in admitting improper and incompetent evidence prejudicial to the defendant's case.

The first proposition must be ruled against defendant. The cause was here on a former appeal. See Williams v. Modern Woodmen of America, 204 Mo. App. 135, 221 S. W. 414. The plaintiffs' evidence on the former appeal was substantially the same as appears from the present record. It was there ruled that the proofs of death filed with the defendant by the plaintiffs, who were the beneficiaries, were not, under the circumstances of the case, conclusive admissions against them, and that it was a jury question as to whether or not George E. Williams was engaged in an occupation specified by defendant's by-laws as hazardous and prohibited, and that his death was traceable to such occupation. This court on the first appeal having reviewed the evidence and having decided that there was sufficient evidence to warrant sending the case to the jury, that decision is the law of this case on the subsequent appeal where the evidence is substantially the same. The question is res adjudicate. Benton v. City of St. Louis, 248 Mo. 98, 154 S. W. 473; State ex rel. v. 3roaddus, 238 Mo. 189, 142 S. W. 340.

As to the alleged error in the admission of evidence: Defendant claims prejudicial error in the court's action in admitting in evidence a conversation between the deceased (insured) and the local camp clerk of defendant order which took place in the presence of William D. Williams, father of deceased.

Over the objection of defendant plaintiff was permitted to offer in evidence and read to the jury a part of defendant's ritual containing instructions to the camp clerk when he was installed in office as follows:

"To you the members come for advice upon all matters pertaining to their connection with this society, and it devolves upon you to keep yourself well informed, so that as an arbiter you may be able to render unprejudiced and impartial opinions."

The court over the defendant's objection then permitted the plaintiff William D. Williams to testify:

That in the summer of 1915 (the insured died September 10, 1915) his son, the insured, had a conversation with the local camp clerk about three weeks or a month before he was killed; that the witness was present at the time, and that the plaintiff's son, the insured, told the camp clerk that he was working as a lineman for the Electric Company of Missouri and wanted to know if his policy was good, and the clerk told him it was, and he then asked the clerk if he would have to pay a higher rate, and the clerk told him he would have to pay a higher or hazardous rate, and my son wanted to know how much it was, and the clerk told him to go ahead, he didn't know what the hazardous rate was; that he would look it up and find out; that my son told the clerk that he was ready to pay a higher rate, and the clerk told him he would have to look it up, and told him to go ahead with his work; that he would look it up, and that it would be all right; and that he should pay the same old dues he was paying until he looked it up.

The contract between the parties is evidenced by the application, certificate, and by-laws. The so-called ritual is not a part of the contract. Defendant's by-laws duly pleaded and offered in evidence provided that the clerk of the camp was not authorized or permitted to waive any of the by-laws of the society which relate to the contract between the member and the society. Such a by-law is authorized by our statute (section 6418, R. S. Mo. 1919). Under the contract as evidenced by the by-laws, which were a part thereof, the defendant was exempted from liability in the event the insured engaged in the occupation of a lineman, provided his death was traceable to such occupation. By engaging in such occupation the insured did not forfeit his certificate, and the only effect of his being engaged in that occupation was to relieve the defendant from liability if his death was directly traceable thereto. While the by-laws permitted the insured to engage in certain hazardous occupations, such as railroading, upon the payment of additional dues, the by-laws did not permit the insured to engage in the occupation of lineman, and to pay a higher rate therefor, and procure a hazardous occupation certificate which would render the defendant liable if his death was traceable to such occupation. If this were a case where the insured had a right to obtain a hazardous occupation certificate on proper application to the defendant order, and he had made application to the clerk of the local camp, defendant's agent and proper officer to receive applications for permits to engage in such hazardous employment, and the foregoing conversation had taken place, and the defendant order had thereafter accepted dues from the insured, we would have a situation such as existed in the case of Simmons v. Modern Woodmen of America, 185 Mo. App. 493, 172 S. W. 492; Id., 194 Mo. App. 29, 188 S. W. 932, relied upon by the plaintiff. In that event the local clerk would not be assuming authority to alter the contract between the parties or make a new contract for them, but simply assuring the insured, as was done in that case, that he would inform the defendant's officers of the facts in the case, and would advise him what further steps were necessary to be taken in order to bring the risk of the new hazardous employment within the certificate. In the event the clerk failed to perform that duty, and the insured thereafter never received any notice from the defendant, but continued in the hazardous employment on the faith of the assurances of the clerk, defendant would be estopped to assert that the certificate did not cover the risk of his hazardous employment. In the Simmons Case, 194 Mo. App. loc. Cit. 34, 188 S. W. loc. cit. 934, the court says:

"On the hypothesis of plaintiff's evidence, we must assume that the chief officers of defendant, with knowledge of all the facts, for two years collected and retained dues, etc., under the contract, knowing that the member, relying on the promise of its agent to advise him if defendant required anything more to be done, was resting in the belief that the certificate covered the risks of his hazardous employment. Under such facts we must hold the defendant itself, and not its...