Winter v. Supreme Lodge K. P. of the World

• Decision Date: 04 August 1902
• Parties: WINTER v. SUPREME LODGE KNIGHTS OF PYTHIAS OF THE WORLD.
• Court: Missouri Court of Appeals

69 S.W. 662

96 Mo. A. 1

WINTER v. SUPREME LODGE KNIGHTS OF PYTHIAS OF THE WORLD.

Court of Appeals at St. Louis, Missouri.

August 4, 1902.

DEATH — PRESUMPTION — ABSENCE — INSURANCE — PROOF OF DEATH — WAIVER — WITNESS — COMPETENCY — INSTRUCTIONS — HARMLESS ERROR.

1. Plaintiff sued upon a benefit certificate. Her testimony showed that the insured disappeared more than seven years before, and that he had not been heard from since. It appeared also that there was a deficit in his accounts as an officer of the lodge, which would have become known on the day following his disappearance. Held error to instruct the jury that, if they found that he disappeared and had not been heard of for seven years, "then, in the absence of any rebutting circumstances, he is presumed to be dead."

2. The presumption of death arising from unexplained absence for seven years does not necessarily imply that the person died at the end of that period. Circumstances may show the probability of his death at an earlier date.

3. A presumption of death from long absence is not an imperative rule of law where the circumstances of disappearance permit any different inference.

4. Missouri statutes declaring a presumption of death after seven years' absence discussed, and held not to destroy the general rules of evidence in regard to said presumption.

5. The secretary of a section in the Knights of Pythias is the representative of the society concerning payment of premiums and delivering blanks for proofs of death. A waiver by him of proofs is valid in the circumstances described in the opinion.

6. A refusal to furnish blanks on which to make proofs of loss is held a waiver of such proofs, as is also an absolute denial of liability.

7. Where a transaction takes place between plaintiff and the agent of a fraternal society, and the agent dies, plaintiff is not a competent witness to prove conversations with him tending to show a waiver of the rights of the society.

8. It is improper for the court to declare to the jury that plaintiff has made out a prima facie case, or to advise the jury that it is presumed that every one exercises ordinary care, or that the conduct of a person is presumed to be in conformity to law.

9. When circumstances in evidence permit the jury to draw an inference adverse to the presumption, it is error for the court to instruct the jury that a presumption exists "in the absence of rebutting circumstances."

10. In Missouri the court is not permitted to comment upon the weight or credibility of the testimony, nor should it submit a disputable presumption as an imperative rule of law.

11. The mere phraseology of the instruction is not prejudicial error if its practical bearing on the result is correct.

12. The beneficiary in the insurance certificate in suit had the burden of proof to establish the fact of death by a preponderance of evidence.

Goode, J., dissenting.

(Syllabus by the Judge.)

Appeal from St. Louis circuit court; Selden P. Spencer, Judge.

Action by Lena Winter against the Supreme Lodge Knights of Pythias of the World. Judgment for plaintiff. Defendant appeals. Reversed.

R. P. & C. B. Williams, for appellant. Grant & Kenedy, for respondent.

BARCLAY, J.

Plaintiff was the wife of Mr. Gustav Winter. She sues on a certificate of membership, in the nature of a policy of insurance for $2,000, issued by the Supreme Lodge Knights of Pythias of the World. The latter is a fraternal society, incorporated under an act of congress. The branch or department of the society which conducts the business of insurance is called the "Endowment Rank." It is managed by a board of control, which deals with the insured members through branches or subdivisions called sections. The laws, rules, and regulations of the defendant require monthly payments to be made upon his certificate by each holder. These installments, in the nature of premiums or dues, are payable to the secretary of the section to which the member belongs, and are remitted by him to the fiscal officer of the supreme lodge or of the board of control. The monthly payments of the insured are due on the 1st day of each month without other notice. A failure of the insured to make the proper payment on or before the 10th day of any month subjects the delinquent member to a forfeiture of his certificate or of his interest therein, unless he be reinstated afterwards upon conditions which need not be recited.

Another feature of the regulation of the society to be noted concerns the proof of death. On that point the by-laws of the society in force at the time when plaintiff's claim was presented provide as follows:

"Section 1. The proof of death shall in all cases be made by the beneficiary or beneficiaries on blank forms to be furnished by the board of control, and shall contain affidavits of the attending physician or physicians, the undertaker who officiated, the master of finance as to standing of deceased in the subordinate lodge at the time of death, and from such other person or persons as may be required; affidavits to be made before the officer authorized to take affidavits, and such authority must be certified to by the clerk of a court of record, or other competent authority, under seal.

"Sec. 2. All necessary legal papers required in order to secure the proper payment of benefits must also be furnished by the beneficiary or beneficiaries, and shall be forwarded with the proof of death to the board of control by the secretary of the section."

The certificate which Mr. Winter had in the endowment rank was issued in 1885 upon surrender of an older certificate in a different class, taken by him in 1879. He paid all required dues and assessments thereon until and including January, 1894. A payment was afterwards made on his account in February of that year which kept the certificate in force to March 10, 1894, after which time it is contended by defendant that the certificate became forfeited under the by-laws of the order. That contention will be conceded for the purposes of this appeal only, subject to the important qualification which is to be discussed in the course of the opinion, the gist of which qualification is found in plaintiff's claim that Mr. Winter died before March 10, 1894.

The pleadings require little notice. The petition counts upon the certificate (expressed to be payable to plaintiff) compliance of the insured with the laws and rules of defendant in respect of payments, etc., and the death of the insured on or about January 18, 1894. It further alleges due notice and proof of death given to defendant, and makes an offer to surrender the certificate on payment of the amount due, $2,000. The answer, after the admission of formal allegations and of the issue of the certificate, pleads certain laws already mentioned governing the order, and it charges that the certificate has become void for failure of the insured to pay the dues thereon after the month of February, 1894. It sets up as further defenses that no notice of death or proofs of loss were given to defendant within a reasonable time after the alleged death, and that said proofs were not tendered until shortly before this suit, in 1901. The reply of plaintiff alleged the facts which are claimed to constitute a waiver by defendant of the notice and proofs of loss. These facts will be shown in the course of the opinion. The trial was had with the aid of a jury.

At the opening of the trial it was admitted that Mr. Winter was in good standing in the endowment rank of defendant until March 10, 1894; that nothing was paid on account of his certificate after that date. The certificate was introduced in evidence without objection.

Plaintiff's case, in substance, is as follows:

Mr. Winter was a tailor. January 18, 1894, about 2 o'clock p. m., he left his home, saying that he was going to see Mr. Schlesinger, an employer for whom he had previously worked for several years. He was never seen or heard of again. Mr. Winter married the plaintiff in 1875, in St. Louis, having emigrated from Germany in 1865. Plaintiff came here from the same country in 1871, but she first met her husband in St. Louis. He had told her that he had brothers and sisters in the Fatherland, but she did not know their residences or names. She knew of no other relatives of his in this country but his immediate family. He was 56 years old at the time of his disappearance. His family consisted of his wife, the plaintiff, and two daughters, aged 15 and 17 years, respectively. They lived in a few rooms on Market street. Prior to 1893 he appears to have been sufficiently prosperous to give his wife and family the ordinary comforts of life and to pay his dues and assessments regularly. His special branch of work was coat-making. He generally worked by the piece. His wife occasionally did work for the profit of the family, and his two daughters were being instructed with a view to assist in their own maintenance. He seems to have been popular with the members of his lodge, and was regarded by them as a man of integrity. He is described by the plaintiff, her daughters, and his fellow lodge members as having been kind, happy, affectionate, "jolly and full of life," until a few months before he disappeared. He was industrious, of good habits, and his earnings were kept at home. Some time before he left he became very much depressed because he could find no work. He grew morose, uncommunicative, and was evidently unhappy. He said a few words to a friend about the burden of his expenses, and exclaimed to his eldest daughter on the day he left, "If he could only get work!" When he failed to return at the usual time, fruitless inquiries were made by his family about him at the morgue, at the Four Courts, at various tailor shops in St. Louis, and at East St. Louis. He had taken none of his clothing, except the articles he wore. Only a few dollars remained in the house. His disappearance was noticed in the St. Louis papers.

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