Williams v. Modern Woodmen of America, a Corp.

• Decision Date: 04 May 1920
• Citation: 221 S.W. 414,204 Mo.App. 135
• Parties: WILLIAM D. WILLIAMS and LAURA WILLIAMS, Appellants, v. MODERN WOODMEN OF AMERICA, a Corporation, Respondent
• Court: Missouri Court of Appeals

221 S.W. 414

204 Mo.App. 135

WILLIAM D. WILLIAMS and LAURA WILLIAMS, Appellants, v. MODERN WOODMEN OF AMERICA, a Corporation, Respondent

Court of Appeals of Missouri, St. Louis

May 4, 1920

Appeal from the Circuit Court of the City of St. Louis.--Hon Benjamin J. Klene, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Earl M Pirkey for appellants.

(1) It is reversible error to give an incorrect instruction at the request of the successful litigant or of the court's own motion which conflicts with a correct instruction given at the instance of the losing party. Mansur-Tibbetts Imp Co. v. Ritchie Imp. Co. v. Ritchie, 143 Mo. 612; State ex rel. Central Coal & Coke Company v. Ellison et al., 270 Mo. 645; Easton-Taylor Trust Co. v. Loker et al., 205 S.W. 87; Flintjer v. Kansas City, 204 S.W. 951; Martmowsky v. City of Hannibal, 35 Mo.App. 70; Desnoyers Shoe Company v. Lisman and Ramsey, 85 App 345; Sheperd v. St. Louis Transit Co., 189 Mo. 373; Wallack v. St. Louis Transit Co., 123 Mo.App. 167; Porter v. Mo. P. Ry. Co., 199 Mo. 83. (2) It is reversible error to reiterate the same thing in instructions for one party. Reeves v. Lutz, 191 Mo.App. 559. (3) It is reversible error for the trial judge to comment on the evidence. Hutchinson v. Safety Gate Company, 247 Mo. 112; Wheeler v. Walace, 53 Mich. 355; 33 American Law Register and Review, pages 42-43; Rose v. Kansas City, 125 Mo.App. 236; Landers v. Q. O. & K. C. R. Co., 143 Mo.App. 88; McGinnis v. Mo. P. R. Co., 21 Mo.App. 413, par. 7; Schmidt v. St. Louis Railroad, 149 Mo. 283. (4) The introduction of the policy or benefit certificate and proof of death of the insured makes a prima-facie case for the plaintiffs, and the burden of proof then rests on the defendant to prove an affirmative defense. Bange v. Supreme Council Legion of Honor, 179 Mo.App. 38; Wolfgram v. Modern Woodmen, 167 Mo.App. 224; Cummings v. W. O. W., 170 Mo.App. 199. (5) Statements contained in death proofs are not conclusive against the beneficiary who furnishes them, but may be overcome by proof tending to explain or relieve against them. Bamberge v. Supreme Tribe of Ben Hur, 159 Mo.App. 111; Queathem v. Modern Woodmen, 148 Mo.App. 33; Bruck v. John Hancock Mutual Life Insurance Company, 194 Mo.App. 538. Notice to the clerk of a local camp that a member is engaged in a prohibited occupation is notice to the company. Andre v. Modern Woodmen, 102 Mo.App. 377; Simmons v. Modern Woodmen, 185 Mo.App. 493.

Truman Plantz and John E. Turner for respondent.

(1) Where the verdict is manifestly for the right party errors in the giving or refusing of instructions will not work a reversal Revised Statutes of Missouri 1909, sec. 2082; Burns v. City of Liberty, 131 Mo. 372, 33 S.W. 18; Barkley v. Cemetery Ass'n, 153 Mo. 300, 54 S.W. 482; King v. King, 155 Mo. 406, 56 S.W. 534; Redman v. Adams, 165 Mo. 60, 65 S.W. 300; Wagner v. Edison Elec. Illuminating Co., 82 Mo.App. 287; Nulle v. Lange, 84 Mo.App. 219. (2) It is the public policy of this State, fixed by the statute and the Supreme and Appellate Courts, not to reverse a judgment on mere technicalities, nor unless error is interposed which materially affects the merits of the controversy to the injury of appellant. There was no material error against appellant committed on the trial of this case, and the verdict being for the right party should not be disturbed. Sec. 2082, Rev. Statutes of Missouri, 1909; Buck v. Buck, 267 Mo. 644; Cohran v. Polk, 252 Mo. 261; Trainer v. Spalerite, 243 Mo. 359; Atkinson v. Am. School of Osteopathy, 199 Mo.App. 251; Dawson v. Railroad, 197 Mo.App. 169; Allen v. Forsythe, 160 Mo.App. 262; McDermott v. Class, 104 Mo. 593; Cross v. Gould, 131 Mo.App. 593; Freeland v. Williamson, 220 Mo. 233; Stumpe v. Kopp, 201 Mo. 420, 424; Mann v. Doerr, 222 Mo. 15; Armelio v. Whitman, 127 Mo. 702-3; Logan v. Field, 192 Mo. 70-71; O'Keefe v. U. Rys. Co., 124 Mo.App. 623; Caplin v. St. Louis Transit Co., 114 Mo.App. 264-5; Schoen Co. v. Brewing Co., 126 Mo.App. 268. (3) Erroneous instructions must be prejudicial or are favorable to the losing party, and where they are not prejudical or are favorable or the error harmless, the judgment will not be disturbed. Barkley v. Association, 153 Mo. 300; King v. King, 155 Mo. 406; Jones v. Railway, 178 Mo. 528; Mockomick Railways, 196 Mo. 550; McKinstry v. Transit Co., 108 Mo.App. 12; Brown v. Transit Co., 108 Mo.App. 310; Litton v. Railways Co., 111 Mo.App. 140; State ex rel. v. Stone, 111 Mo.App. 364; Edmonston v. Jones, 96 Mo.App. 83; Crescent P. Co. v. Spilker, 77 Mo.App. 409; Hannon v. Transit Co., 102 Mo.App. 216; S.W. Rys. v. Railways, 110 Mo.App. 300. (4) Proofs of death of the insured furnished by the beneficiaries are admissible in evidence against the beneficiaries as admissions by them, and, when not contradicted or explained, are conclusive against them. Stephens v. Mut. Life Ins. Co., ___ Mo.App. ___, 176 S.W. 253; Bruch v. John Hancock Mut. Life Ins. Co., 185 S.W. 753. (5) Under the terms of the contract herein sued on the acceptance of assessments from Williams, with knowledge by the officers and members of his local camp that he was engaged in a hazardous occupation, is not a waiver of the provision of the contract relieving the Society from liability on account of his death being directly traceable to his employment in said occupation. Abel v. Modern Woodmen of America, 105 N.W. 65; Modern Woodmen of America v. Talbot, 107 N.W. 790; Crites v. Modern Woodmen of America, 117 N.W. 776; Showalter v. Modern Woodmen of America, 120 N.W. 994; Modern Woodmen of America v. Weekley, 139 P. 1138; Frain v. Modern Woodmen of America, 155 P. 330; Ridgeway v. Modern Woodmen of America, 157 P. 1191.

NIPPER, C. Reynolds, P. J., Allen and Becker, JJ., concur.

OPINION

NIPPER, C.--

This is an action originating in the Circuit Court of the City of St. Louis, on a beneficiary certificate. Appellants are father and mother of George E. Williams, deceased, who, prior to his death, held a certificate of membership in respondent order.

Verdict and judgment for defendant, and plaintiffs appeal.

The petition alleges that the certificate of membership, or insurance policy, was issued by respondent to the deceased, George E. Williams, in July, 1911, whereby respondent agreed to pay appellants, as beneficiaries in said certificate, the sum of $ 2,000, should the said deceased member be in good standing at the time of his death; that insured died on September 10, 1915, and had complied with and performed all the things required of him by said certificate.

Respondent's answer was a general denial, and a plea that the contract of insurance entered into by and between the deceased and respondent, was evidenced by: (1), the application of deceased; (2), the benefit certificate sued on; (3), the by-laws of the respondent, which became a part of the contract, and further sets out the provisions of the benefit certificate and application for membership and numerous provisions of its by-laws, and alleges that deceased, subsequent to the issuance of the certificate, and prior to his death, had become engaged in a hazardous occupation, to-wit, lineman in the employ of an electric car company or electric power or electric line or telephone company; that he was engaged in such occupation at the time of his death, and received an electric shock; that his death resulted by reason thereof, and was directly traceable to his employment in said occupation.

Appellants' reply was a general denial.

Appellants introduced evidence to show that they were the father and mother of deceased, George E. Williams, and that he died on the date mentioned in the petition, and that he had paid all dues and was not delinquent at the time of his death, and then offered the benefit certificate and rested their case.

Respondent offered the certificate of authority issued by the State Superintendent of Insurance to do business in the State of Missouri as a benefit society. It then offered several sections of its by-laws, and the proofs of death which were filed with the head clerk of the respondent, on September 28, 1915, by the claimants, William D. Williams and Laura Williams. This included affidavits made by claimants; the coroner's verdict, and the evidence taken at the inquest; also the testimony of witnesses who were either upon the pole with deceased, or near the same, at the time he died, all of which was to the effect that deceased's death was caused from an electric shock while working in the employment of an electric company, and upon a pole taking up slack in electric wires.

Witness Kloppenburg stated that he was working upon the same pole with deceased at the time he died, and in answer to a question as to what, if anything, had happened that day to Mr. Williams (meaning the deceased), said:

"We were pulling slack on Landscape Avenue and had two wires pulled and we cut the slack out of the outside phase and made our connection, slacked off our blocks and got ready to take our jumper off. He worked west and turned his back to me and I east with my back turned to him, and I heard a flash and turned around and saw him hanging in his belt and I grabbed him and held him in until I got help to take him down off the pole."

The testimony shows, that upon examination of deceased it was found that he had dark burns across the abdomen and on the right arm between the wrist and elbow, and on the left arm between the elbow and shoulder.

All the evidence offered by respondent, including the affidavits made by claimants, as well as the verdict of the coroner's jury, and the evidence of the nearest witnesses at the time of death, shows that deceased came to his death by an electric shock received while he was working upon this pole for...