Wintergerst v. Court of Honor

• Decision Date: 03 November 1914
• Parties: ELLA WINTERGERST et al., Appellants, v. COURT OF HONOR, Respondent
• Court: Missouri Court of Appeals

170 S.W. 346

185 Mo.App. 373

ELLA WINTERGERST et al., Appellants, v. COURT OF HONOR, Respondent

Court of Appeals of Missouri, St. Louis

November 3, 1914

Argued and Submitted October 9, 1914.

Appeal from St. Louis City Circuit Court.--Hon. W. B. Homer, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Judson Green & Henry for appellants.

(1) The trial court committed reversible error in declaring as a matter of law, at the request of respondent, that the beneficiary in the certificate sued on was never changed from Pearl Riley, the original beneficiary, to Ella Wintergerst and Pearl Riley, and that consequently, the appellants having sued on a joint cause of action could not recover. The change in beneficiary made by Charles Wintergerst before his death is valid and binding on respondent. Bacon Benefit Societies (3 Ed.), sec. 309; Police Relief Association v Tierney, 116 Mo.App. 447; Grand Lodge v O'Malley, 114 Mo.App. 191; A. O. U. W. v. McFadden, 215 Mo. 269. (a) The recording of the change at Springfield in the lifetime of Charles Wintergerst was not essential to the validity of the change, but it became effective as soon as Charles Wintergerst signed the request for a change and had it witnessed and delivered for transmission to Springfield. Hoffman v. Grand Lodge, 73 Mo.App. 47; McGowan v. Forresters, 104 Wis. 173; Niblack on Benefit Societies, sec. 223; Hirschel v. Clark, 81 Iowa 200. The recorder of the local lodge in forwarding the certificate to Springfield to have a record of the change made, acted as the agent of the respondent and not as agent of appellants. Nat'l Assn. v. Kirgin, 28 Mo.App. 80. (b) There is no difference in this respect between a suit at law and one in equity. McGowan v. Forresters, 104 Wis. 181. The obiter suggestion of the Kansas City Court of Appeals in the Ross case, 89 Mo.App. 621, to the effect that there might be a difference between law and equity in this respect is out of harmony with all other decided cases on this subject; and besides, that opinion was expressly disapproved by the Supreme Court of Missouri in the McFarland case, 213 Mo. 269. See also McGowan v. Forresters, 104 Wis. 181; Hirschel v. Clark, 81 Iowa 200, 28 Mo.App. 82. The highly technical decision of the trial court on this proposition is contrary to the spirit of modern jurisprudence and reads like a decision from the middle ages. (c) In fact, this case is stronger in this respect than the interpleader suits before this court when it decided that such a change was valid without being approved by the supreme recorder, because in these interpleader suits the original beneficiary, the party directly interested, was contending that the attempted change was ineffectual; while in this case the original beneficiary has accepted the change and is asking that it be recognized, while the society is the objector, and its rights, as a matter of fact, are not affected by the change. Pearl Riley will be bound by the judgment in this case and respondent cannot be called upon to pay twice. What, then, is its interest? (2) Even if the change made in the beneficiary of the original policy had not been valid and binding upon respondent, it waived its right to object by failing to plead in its answer a misjoinder of parties plaintiff. The trial court committed reversible error in refusing appellant's instruction No. 11 covering this proposition. Rev. Stat. 1909, secs. 1800 and 1804; Webster v. Railroad, 116 Mo. 114; Van Hoozier v. Railroad, 70 Mo. 145; Chouteau v. Hewitt, 10 Mo. 131. (3) The trial court committed reversible error in refusing to declare that the provisions of section 122 of the constitution of respondent society which requires that applicants who are obligated at their homes must sign a written statement of the reasons which prevent them from attending at a meeting of the district court for initiation, are directory merely, and not mandatory, and that a failure to comply therewith will not render the obligation void if it is regular in other respects. The constitution merely requires that the applicant shall state in writing that there are unavoidable reasons other than sickness or accident which prevent his initiation at a regular lodge meeting. He is not required to specify what these reasons are, except that they are not sickness or accident; and it does not give the local recorder, the supreme recorder, the district court or any other officer or body the right or power to pass upon the sufficiency of such statement when so made by the applicant. On the contrary, such statement, when signed by the applicant, is conclusive upon the society and its officers, and they have no power to review it or to reject it. Therefore, this provision is merely directory and not mandatory. Suppose the applicant should sign such a statement of reasons, and the officers of the local lodge should fail to file it among the records or to report it. Would that failure invalidate the obligation? Police Relief Assn. v. Tierney, 116 Mo.App. 465; Mystic Circle v. Crawford, 75 S.W. 845; Lorscher v. Knights of Honor, 2 L.R.A. 206; Matthews v. Modern Woodmen, 236 Mo. 327. (4) Even if the provisions of this section of the constitution were mandatory, yet the evidence shows that the respondent society and its supreme officers waived a compliance with this section in the case of nearly all the 213 members of Mound City Lodge No. 807, and received and accepted Lawrence Riley and Mr. and Mrs. Turner as regular members, although it knew they were obligated exactly as Wintergerst was; and it accepted many others as regular members, obligated in the same way, without requiring any further initiation, and continued to collect their dues and assessments with full knowledge of the fact that they had been obligated at their homes in the same manner. It had no right to waive the requirements of the constitution in the case of all these who continued in good health, and to insist that poor sick Wintergerst was not a member, when he came in exactly as all these others had done. It could not enforce this provision when it suited its exigencies and then ignore it whenever it wished. Such societies may waive these provisions of their constitutions. Shortle v. Brotherhood, 139 Mo.App. 440; Edmonds v. Modern Woodmen, 125 Mo.App. 214; Zahm v. Royal Union, 153 Mo.App. 70; McMahon v. Maccabees, 151 Mo. 522; Burke v. Grand Lodge, 136 Mo.App. 450; Britt v. Woodmen, 153 Mo.App. 698. It is also well established that even the local officers of such a society may waive any initiation or obligation, or even the delivery of the certificate, notwithstanding the constitution requires such things as conditions precedent to liability. Norman v. Commercial Travelers, 145 S.W. 853; Rhodus v. Insurance Co., 156 Mo.App. 281. But in this case we have acts of waiver by the supreme officers with full knowledge, and by a deputy organizer who is the representative of the Supreme Chancellor. (5) The court also committed reversible error in refusing to declare as a matter of law that the sending of blanks for proofs of death to appellants by respondent, and requesting them to prepare affidavits and make death proofs at an actual expense of $ 4 without advising them that Charles Wintergerst was not a member on account of his irregular obligation, when the respondent at that time had full knowledge of all the facts and had already officially declared that Charles Wintergerst was not a member and had already officially instructed its local recorder to enter on his record the lapse of the certificate and to mark the same void, was in law a waiver or estoppel; and respondent cannot now insist that Charles Wintergerst was not properly obligated. Society v. Wilson, 91 Ill.App. 667; Roark v. Trust Co., 130 Mo.App. 401; Dolan v. Town Mut. I. Co., 88 Mo.App. 666; Burham v. Casualty Co., 117 Mich. 142; Traders Ins. Co. v. Johnson, 200 Ill. 359; Trippe v. Society, 140 N.Y. 23; Tripple Link I. Co. v. Johnson, 101 Ill.App. 559. The notice printed on these blanks to the effect that the respondent did not waive any rights by submitting these blanks, does not prevent an estoppel under the facts we have here, because that notice does not disclose the facts then within the knowledge of the supreme recorder. Burnham v. Casualty Co. 117 Mich. 142; Martinson v. Ins. Co., 64 Mich. 362; Home Ins. Co. v. Kennedy, 47 Neb. 138; Georgia Home Ins. Co. v. Moriarity, 37 S.W. 628. (6) Respondent is further barred from insisting in this action that Charles Wintergerst was not a member of the society by its failure to tender back and pay into court, the August and September dues and assessments paid by Charles Wintergerst, amounting to $ 6.16. These dues and assessments were duly paid to the local recorder, the regular authorized agent of the society for that purpose, and under the constitution payment to him was payment to the society. Leech v. Telegraphers, 130 Mo.App. 5; Norman v. Travelers, 145 S.W. 854; Rhodus v. Ins. Co. 156 Mo.App. 281; Home Forum Benefit Assn. v. Jones, 20 Tex. Civ. App. 68; Andre v. Modern Woodmen, 102 Mo.App. 377.

R. P. and C. B. Williams for respondent; Wm. B. Risse of counsel.

(1) The recorder of the local court is without authority to waive any of the provisions or requirements of the constitution or by-laws. Session Acts, 1911, page 292, sec. 22; Day v Supreme Council, 174 Mo.App. 260; Clair v. Royal Arcanum, 172 Mo.App. 109; Brittenham v. Sovereign Camp, 167 S.W. 587. (2) This being a suit at law upon the benefit certificate, it was necessary to show that the effort to make change of the beneficiary had ripened into a completed change so far as the society is concerned. It had not, for the certificate was not delivered to the recorder until after the death of Wintergerst, and...