Zinke v. Knights of Maccabees of World

• Decision Date: 08 January 1918
• Citation: Zinke v. Knights of Maccabees of World, 200 S.W. 99, 198 Mo.App. 399 (Mo. App. 1918)
• Parties: AUGUSTA M. ZINKE, Respondent, v. KNIGHTS OF THE MACCABEES OF THE WORLD, Appellant
• Court: Missouri Court of Appeals

200 S.W. 99

198 Mo.App. 399

AUGUSTA M. ZINKE, Respondent, v. KNIGHTS OF THE MACCABEES OF THE WORLD, Appellant

Court of Appeals of Missouri, St. Louis

January 8, 1918

Appeal from the Circuit Court of the City of St. Louis.--Hon William M. Kinsey, Judge.

AFFIRMED.

Judgment affirmed.

R. P. & C. B. Williams for appellant; D. D. Aitken, general counsel.

(1) If there was a substantial controversy between plaintiff and defendant as to what defendant owed the plaintiff on the benefit certificate, and this controversy arose in consequence of a bona-fide and plausible claim by defendant that there was due under the benefit certificate, by reason of the fact that the member committed suicide, only $ 578.40 this was a consideration for the payment and acceptance of this amount in full of all claims on the benefit certificate. Coal Co. v. Coal Co., 127 Mo.App. 320, 324; Woodmen of the World v. Bridges, 165 F. 342; Chamberlain v. Smith, 110 Mo.App. 657, 660; Bahrenburg v. Conrad, 128 Mo.App. 526; Pohlman v. City of St. Louis, 145 Mo. 551; McCormick v. City of St. Louis, 166 Mo. 315; Railroad v. Clark, 178 U.S. 353, 44 L.Ed. 1099; Perkins v. Headley, 49 Mo.App. 556, 562; Ogilnie v. Lee, 138 S.W. 926. (2) The amount due on the benefit certificate at the time of the payment of $ 578.40 was unliquidated. It was one or the other of two amounts. In the event of suicide of the member, it was $ 578.40. In the event of accidental or natural death, it was $ 1,000. This, as applied to the subject of accord and satisfaction, made the claim of the plaintiff at the time of the payment, unliquidated, and the payment by the defendant and acceptance by plaintiff of the sum of $ 578.40 in full of her claim on the benefit certificate is conclusive. Pohlman v. City of St. Louis, 145 Mo. 651; McCormick v. City of St. Louis, 166 Mo. 315, 335; Scott v. Realty Co., 241 Mo. 112, 135; Perkins v. Headley, 49 Mo.App. 556, 562; Railroad v Clark, 178 U.S. 353, 44 L.Ed. 1099; Nassoiy v Tomlinson, 148 N.Y. 326, 51 Am. St. 697, 42 N.E. 715; Camp v. Raymond, 175 N.Y. 102, 67 N.E. 113; Simmons v. Supreme Lodge, 70 N.E. 776; Camp v. Raymond, 58 N.Y.S. 909; Coffey v. Lumber Co., 139 A.D. 746; Palmerton v. Hoxford, 4 Denio, 166, 167; Lestienne v. Ernest, 5 A.D. 373; Ostrander v. Scott, 43 N.E. 1091; Bingham v. Browning, 64 N.E. 317, 321; Ferguson v. Grand Lodge, 156 N.W. 176; Greenleaf v. Monot, 116 Ia. 535; Sparks v. Spaulding, 158 Ia. 491; Neeley v. Thompson, 68 Kans. 193; Treat v. Price, 47 Neb. 875; Lanier v. Merrill, 108 Mich. 58, 62 Am. St. 687; N.Y. Life Ins. Co. v. McDonald, 160 P. 193. (3) Where the debtor concedes an amount to be due his creditor, and the creditor claims a greater sum, the creditor has the right to withhold payment, unless a receipt in full is given, and this is a consideration for the receipt in full of the entire claim. Scott v. Realty Co., 241 Mo. 112, 135. (4) Settlements between insurer and insured have all the elements of a contract and are incapable of rescission by one party as any other contract. Such settlements are binding in the absence of fraud, deceit or duress. Frey v. Insurance Co., 189 Mo.App. 696; Georgia Home Ins. Co. v. Wortham, 113 Ala. 479, 59 Am. St. 129; McLain v. Insurance Co., 122 Ia. 355; Davis v. Phoenix Ins. Co., 81 Mo.App. 264; Howard v. Georgia Home Ins. Co., 102 Ga. 137; Benson v. Prudential Ins. Co., 13 Pa.Super. Ct. 363; Clanton v. Insurance Co., 101 Mo.App. 312, 322; Wood v. Mass. Accident Assn., 54 N.E. 541; Biddlecomb v. General Accident Co., 152 S.E. 103, 106; Dodt v. Prudential Ins. Co., 186 Mo.App. 168; Brady v. Insurance Co., 180 Mo.App. 214; 3 Bouviers Law Dict., page 2823 under "Receipts in full." (5) When a party by word or conduct voluntarily induces another to act in view of a certain state of facts, he will be estopped to allege against him a different state of facts, to his prejudice. Cornwall v. Gainer, 85 Mo.App. 684; Reynolds v. Kraft, 144 Mo. 433, 477; State ex rel. v. Branch, 151 Mo. 622, 639; 11 Am. and Eng. Encyc. Law (2 Ed.), p. 421; Grundy v. Webb, 48 Mo. 562; Woodmen of the World v. Bridges, 165 F. 342. (6) The beneficiary furnishing preliminary proofs of death showing suicide of the member and settling with the defendant, receiving the amount due her in case of suicide, and receipting in full for all claims on the certificate, without informing the society prior to the settlement that the proofs of death did not state the true facts, is estopped from making claim contrary to this statement. Ben. Ins. Co. v. Newton, 22 Wallace 32, 22 L.Ed. 763; Campbell v. Insurance Co., 10 Allen, 213, 219; Irvin v. Insurance Co., 1 Bos. 507; Employers Liability v. Anderson, 74 Kan.App. 18-23; Sage v. Finney, 156 Mo.App. 30-42. (a) It is the law of this State that an admission of suicide in preliminary proof of death under a policy of insurance is conclusive against the claimant on the trial of the case, for the amount agreed to be paid, where such admission is not in some way disaffirmed or explained. Stephens v. Insurance Co., 190 Mo.App. 680; Kastens v. Supreme Lodge, 190 Mo.App. 65; Hammond v. Benefit Society, 148 Mo.App. 33. (7) The court should have submitted the question of accord and satisfaction to the jury, and should have given instructions 1-c and 1-f, requested by the defendant and refused by the court, and should not have instructed the jury that there was no consideration for the release. Barrett v. Kern, 141 Mo.App. 23; Bahrenburg v. Fruit Co., 128 Mo.App. 526; Heitland v. Culver, 181 Mo.App. 697. (8) Plaintiff having received $ 578.40 in full of all claims on the benefit certificate and defendant having paid the amount with such understanding, plaintiff cannot maintain this suit without tendering back to defendant the amount received. This would operate as a fraud on defendant, and deprive it of the legal right it had to refuse to pay said amount without a release of the entire claim. Boehm v. American Patriots, 172 Mo.App. 104; Carroll v. United Railway Co., 157 Mo.App. 247-289; Frey v. Prudential Ins. Co., 189 Mo.App. 696.

Durham & Durham by Geo. O. Durham for respondent.

(1) (a) It is not every unliquidated demand upon which a payment is made that is within the rule as to accord and satisfaction. Rogers v. Nee, 194 Mo.App. 163; Dodt v Insurance Co., 186 Mo.App. 168; Pollman v. St. Louis, 145 Mo. 651. (b) There must be a substantial controversy concerning the claim. Bahrenburg v. Fruit Co., 128 Mo.App. 526, conceded by appellant brief, p. 13; 1 C. J. 358. (c) An accord and satisfaction requires an agreement, an aggregatio mentium. If the obligation sought to be extinguished arises from contract it requires the substitution of a new agreement in place of the old. 1 C. J. 527; Barrett v. Kern, 141 Mo.App. 24; Perkins v. Headley 49 Mo.App. 561, Barcus v. Case T. M. Co., 197 S.W. 478; (d) There was no evidence that the money was tendered by way of compromise; there was no evidence that plaintiff had claimed any particular sum; the intention was to pay the suicide benefit thinking this was the entire obligation and the receipt so recites. In view of the fact that suicide was not proven, this was shown to be a mistake, and the sum paid was not the full amount due under the suicide by-laws or any other laws, and was not a bar to plaintiff's recovery. Dodt v. Insurance Co., 186 Mo.App. 168. (2) Settlements between insurance companies and the insured are of course binding if fair and in the absence of fraud, deceit, duress or mistake as other contracts. The cases cited by appellant, however, limit the rule to cases of fair and well understood cases of compromise. Dodt v. Insurance Co., 186 Mo.App. 174; Pollman v. St Louis, 145 Mo. 651; Rogers v. Nee, 194 Mo.App. 163. (3) Beneficiary is not conclusively bound by even her own admissions appearing in the proofs of death and she may explain, or deny them or show that they were made as a result of erroneous information or no information at all. Remfry v. Insurance Co., 196 S.W. 775; Sage v. Finney, 156 Mo.App. 30-42; Stephens v. Insurance Co., 190 Mo.App. 680; Kastens v. Supreme Lodge, 190 App. 65; Hammond v. Benefit S., 148 App. 33; Grey v. Ind. Order of Foresters, 196 S.W. 779. (4) The court properly refused to submit the issue of accord and satisfaction to the jury. There was no evidence that the money was paid by way of compromise of a disputed claim or to settle a controversy. On the contrary it conclusively appeared that the party paid the money with the intention of executing an old contract, and on the theory that the insured committed suicide. 1 C. J. 414; Barcus v. Case T. M. Co., 197 S.W. 478. (5) The transaction whereby the money was paid did not amount to a new contract of release or compromise, rendering it necessary for plaintiff to obtain equitable relief in setting aside such contract nor require her to tender back what she had received as prerequisite to maintaining such equitable action. The money was paid on the old contract and was a discharge only pro tanto. Dodt v. Insurance Co., 186 Mo.App. 168. (6) The suicide provision was no part of the contract of insurance between the defendant and plaintiff's husband. There was a conflict between the application and the policy in that the application offered as a basis of the contract a provision rendering the contract void in case of suicide. This was in conflict with the by-laws and in conflict with the policy as written. In case of a conflict between the application and the policy the policy governs. Laker v. Fraternal Union, 95 Mo.App. 353; Westermann v. Woodmen, 236 Mo. 326; Pledger v. Assn., 197 S.W. 88. Since by the terms of the contract suicide was no defense, the claim could not have been in dispute and a partial payment could in no case satisfy the entire debt. Pollman Coal Co. v. St Louis, ...