277 Mo. 678 | Mo. | 1919
This is an appeal from a judgment for $8601.67 in an action respondent brought upon a benefit certificate issued upon the life of her husband by appellant, a 'fraternal beneficiary society.
The evidence showed respondent’s husband joined appellant order December 5, 1913, was accidentally injured on March 1, 1914, and died on March 12, 1914. Appellant earnestly contends (1) there is no evidence the injury was the cause of death; (2) that, at most, it conclusively appears the injury was not the sole cause of death; (3) that on several grounds, all rights under the certificate were forfeited; and (4) that numerous errors occurred at the trial. The question whether forfeitures were waived is the basis of one of the principal controversies in the case.
The benefit certificate sued on and the applicable statute . (Sec. 9, p. 286, Laws 1911) provide that the certificate, the articles of incorporation, the constitution and by-laws of the society and the application on which the certificate was issued shall constitute the contract between the society and the insured member. The provisions of appellant’s constitution relating to notice
“Any insured member who shall sustain an accident covered by this' article shall, within ten days after the date of such accident, send a notice in writing of said accident (not the results) to the supreme secretary, stating his full name and address, and full particulars of his accident. After the receipt of notice of any accident, as above provided, the supreme secretary shall. within' five days, forward or present to the claimant, beneficiary or attending physician, blanks for the preliminary proof of the accident. Within fifteen days after said blanks shall be forwarded by the supreme secretary, the claimant shall return to the supreme secretary, upon said blanks, preliminary proof of the accidental injuries, setting forth the date and description of the same, together with the report of the attending physician. Whenever deemed advisable the supreme secretary may forward or present blanks to the claimant for final proof, and within fifteen days after the loss of time has terminated or the loss of one or both eyes, or one or both upper dr lower extremities, has occurred, the claimant shall forward to the secretary-treasurer of his subordinate council, said proofs, which shall consist of a final report, signed by the claimant and sworn to before any officer authorized to administer oaths, and a statement of the attending physician. If deemed advisable the claimant may be required to furnish additional reports and additional medical reports.
“If death shall result under the conditions covered by this article, a notice of said death must be given in writing to the supreme secretary within ten days after said death, which death notice shall be in addition to the notice of the accident and shall state the cause of death.
“Upon receipt of notice of a death as above provided the supreme secretary shall, within thirty days, forward or present to the beneficiary or attending physician blanks for proof of the same, and said beneficiary*686 or attending physician shall return to said supreme secretary such proofs upon said blanks within thirty days from the time the same shall have been forwarded or presented, together with a certified copy of the coroner’s inquest, if one has been held. If deemed advisable the claimant may be required to furnish additional reports and additional medical reports.
“The forwarding of blanks for the purpose of proofs as above provided, or the investigation of any claim by a member or officer of the order or anyone authorized to represent the order, or the holding of any autopsy by anyone representing the order, shall not constitute or be a waiver of any right or of any defense which the order may have against any claim made against it, and the making of proofs or filing of notices shall be at claimant’s expense.
“Any failure to give or furnish the notices, preliminary proof or final proofs, as hereinbefore required, each within the time limited therefor, shall be deemed a waiver of any .and all claims against the order 'and said claim shall be deemed forfeited by said failure.
“No knowledge or information obtained by or furnished to any officer or member of any subordinate, grand or supreme council of the order, except the supreme secretary of the order, shall be held or construed to be knowledge of or notice to the order. ....
“No officer, member or agent of any subordinate,’ grand, or the supreme council of this order is authorized or permitted to waive any of the provisions of the constitution of this order relating to insurance as the same are now in force or may be hereafter enacted.”
The accident which respondent claims and the jury found resulted in Allman’s death, occurred on March 1, 1914. Its immediate effects were several minutes of unconsciousness and a considerable shock. Beyond this it did not materially interfere with Allman’s performance of his duties as a traveling salesman between March 1, 1914, and the night of March 11, 1914. He covered his usual route during this time. There was some evidence of soreness in the left side and arms,
Upon the evidence concerning ydiat happened subsequently, questions of forfeiture and waiver are raised. This evidence will be set forth more fully in the opinion.
I. (a.) The funeral of Allman was conducted by the members of the Neosho subordinate council of appellant, of which local council Allman' was a.member. On March 18, 1914, respondent wrote Gettings, secretary-treasurer of the Neosho subordinate council, expressing appreciation of the council’s kindness to her and the “honor they have shown my husband in death.” No notice of any kind of the original accident was sent to anyone during the ten days immediately following March 1, 1914, and, excepting the letter from respondent to Gettings, neither respondent nor anyone for her communicated with anyone connected with the order until considerably more than ten days after Allman’s death.
Respondent in her brief very properly concedes “that the supreme office of appellant was not notified-of the death within the ten-day period.” The record has nothing in it to justify any other position.- Respondent suggests, on the other hand, that officers of the
The constitution of the order, which, by express statute (Sec. 9, p. 286, Laws 1911) and the agreement of the parties to the benefit certificate, is a part of the contract sued on in this case, explicitly provides that, in case of death, notice thereof shall be given to the supreme secretary of the order within ten days, and as explicitly provides that knowledge or information of members and officers of local councils shall not be “held or construed to be knowledge of or notice to the order.” .These stipulations it was within the power of the parties to make and, by express statute (supra), bind respondent.. Since they have been made by the parties, this court has no power to exscind them or hold that their violation is no violation of the contract. [2 Bacon on Benefit Societies, secs. 568, 573.] There is no suggestion in the record 'or briefs that failure to give the requisite notice was due to any fact or condition constituting a legal excuse therefor, and the authorities are quite uniform that a provision for notice within ten days is not an unreasonable requirement.
Appellant’s counsel made the point throughout the case and consistently insisted that evidence of knowledge by members of the subordinate council was inadmissible. There is no escape from the conclusion that there is not a scintilla of evidence tending to show compliance with the requirement concerning notice.
II. The principal question is, whether the forfeiture was waived.
The blank was neither requested nor sent during the currency of the period during which notice might have been given undér the contract. The constitution provides that sending blanks shall not constitute waiver. The blanks conclusively show absence of any intent to waive the forfeiture, and respondent was not in any
November 19, 1914, appellant wrote respondent announcing the rejection, of the claim by appellant’s supreme council, and stating “that the claim was disallowed for constitutional reasons. We believe it is unnecessary to specify the reasons for the -disallowance item by item as the specifications will be set forth by our chief attorney in due time.” The letter tendered the proofs, etc., respondent had furnished, and offered to forward them as soon as respondent advised the manner of return. It also stated that respondent’s attorney’s letter and the registry receipt signed .by the respondent showing receipt of request for autopsy were in appellant’s possession.
The denial of liability came after forfeiture and after suit brought. It did not place that denial exclusively on a ground or grounds other than forfeiture. It was general and asserted reliance on the provisions of the constitution of the order. One provision of the constitution was that for notice and another was for forfeiture in case of failure to give notice. The letter contains no implication that the - claim is rejected on any ground which would justify an inference of abandon' ment of the forfeiture for failure to give notice. It was not written during the currency of the period for giving-notice, but after forfeiture, and there is no suggestion that anything was done by respondent upon the faith of any belief, engendered by this letter, that caused her expense or prejudiced her in any way.