Wilson v. General Assembly of American Benevolent Association
| Decision Date | 03 June 1907 |
| Citation | 103 S.W. 109,125 Mo.App. 597 |
| Parties | NORA H. WILSON, Administratrix, etc., Respondent, v. GENERAL ASSEMBLY OF THE AMERICAN BENEVOLENT ASSOCIATION, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Linn Circuit Court.--Hon. John P. Butler, Judge.
AFFIRMED.
Edwin S. Puller and Tunnell & Hart for appellant.
(1) All questions with regard to the character of the appellant as to whether or not it is a fraternal beneficiary association are disposed of so far as this appeal is concerned by the fact that the trial court found that the appellant was a fraternal beneficiary association and so instructed the jury, and no exceptions were saved to the giving of the same by the respondent. Westminster College v. Pierson, 161 Mo 286.
Burns & Burns and West & Bresnehen for respondent.
In consideration of a flat premium defendant agreed to pay to the insured's administrator the sum of nine hundred dollars. This makes it an old line policy. It is conceded that for more than nine years and until his death the premiums were paid; that the insured died at the time stated in the petition; that the plaintiff is the duly appointed qualified and acting administrator of the insured's estate; that proper notice of the insured's death was given to defendant and that defendant denied liability. Under these admitted facts, the plaintiff, under all the authorities, was entitled to a peremptory instruction. Harzberg v. Modern Brotherhood, 110 Mo.App. 328; Dennis v. Modern Brotherhood, 119 Mo.App. 210; Toorney v. K. of P., 147 Mo. 129; Aloe v. Life Association, 164 Mo. 675; Folkens v. Insurance Co., 98 Mo.App. 480.
This action is based on what defendant says is a benefit certificate issued by a fraternal benefit society for nine hundred dollars. The judgment in the trial court was for the plaintiff.
The plaintiff contends that while the defendant may be organized as a fraternal benefit society, yet it has made a contract in this case which is not entitled to the privileges and immunities granted to such societies by the statute whereby they are exempted from certain provisions as to representations, suicide, etc., which are applicable to general life insurance companies. The defense is that the deceased member was afflicted with epilepsy and that he made false representations in regard thereto. If the defendant is entitled in this case to the protection of the statute referred to it is not liable. [R. S. 1899, sec. 1408.] If it is not so entitled, then under the terms of the general statute, such representations will not avoid the policy and it is liable. [R. S. 1899, sec. 7890.]
In this State it is settled that it is not the nature of the society but the terms of the contract in suit which determines whether its exemption from the general statute shall apply in that case. [Toomey v. Supreme Lodge, 147 Mo. 129, 48 S.W. 936; McDonald v. Life Assn., 154 Mo. 618, 55 S.W. 999; Aloe v. Fidelity Assn., 164 Mo. 675, 55 S.W. 993; Logan v. Casualty Co., 146 Mo. 114, 47 S.W. 948.] In other words, a fraternal society or an assessment association, which executes such a contract as the statute authorizes it to execute, is entitled to the exemptions from the general law as to false representations, suicide, etc. But if it executed a contract not so authorized then, as to that contract, it is not entitled to such exemptions. When the certificate in controversy was issued in 1896, the statute (R. S. 1899, sec. 2823), named as beneficiaries of such contracts the following classes: "members and families, widows, orphans or other kindred dependent on deceased members." When the deceased died in 1905, the statute (R. S. 1899, sec. 1408), provided that "Payments of death benefits shall be to the families, heirs, blood relatives, affianced husband or affianced wife, or to persons dependent upon the member."
In this case, the contract in the certificate is not within the terms of either of those statutes. The beneficiary is the "legal representative" of the member, and this action is brought by the administratrix of the member's estate. The fund sought to be collected would go to the general estate, and possibly be...
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