172 Mo. App. 709 | Mo. Ct. App. | 1913
This is a suit on a certificate of life insurance. The finding and judgment were for defendant and plaintiffs prosecute the appeal.
There are several arguments advanced in the brief, but in the view we take of the case, but two questions need be considered. These present an inquiry as to whether or not defendant’s by-law pertaining to proscribed occupations is self-executing; and if so, is it within the power of the secretary of the local council to which insured belonged to waive a forfeiture thereunder or estop the defendant from asserting it in defense, when there is nothing in the record indicating such secretary represented defendant or its superior officers ?
Defendant having qualified under our statutes as a fraternal beneficiary association in this State, established certain subordinate lodges, among which was Hickory Council No. 766 Royal Arcanum, located in the city of St. Louis. The insured, Jesse Randolph, affiliated with this council and submitted to defendant his written application for a certificate of insurance in the amount of $1000, payable to the plaintiffs, in the event of his death. His application was accepted and the certificate issued thereon by defendant on the 15th day of September, 1909. Among other things, the va-' lidity of the certificate and its payment are conditioned upon the fact that “the insured is in good standing in this order at the time of his death,” etc.
At the time Randolph applied for the insurance and became a member of the order, he was employed as a painter in St. Louis, and so stated his occupation in the application. Defendant’s by-law No. 272 proscribes a number of occupations and both inhibits the insurance of the lives of persons engaged therein and
But it is argued for plaintiffs that defendant’s by-law touching this matter is not self-executing and that the insurance certificate remained valid until the insured should be suspended by his council — -that is,. Hickory Council No. 766, in St. Louis — which was never
“ (1) A member who, during the first five years of his membership, shall enter upon or become engaged in a proscribed occupation, shall thereby and thereupon stand suspended from all rights and privileges in the order, cease to be in good standing, forfeit all the rights and privileges of membership and in his benefit certificate, which shall be void, and no assessments or dues shall be received from him thereafter.
“(2) The regent shall announce the suspension in the council. The secretary shall record the suspension, the date thereof, if known, and of the announcement thereof, and immediately notify the supreme secretary, giving the member’s name, date and cause of suspension, number of his benefit certificate, the proscribed occupation upon which the member has entered and the date the suspension was announced in council.”
There can be no doubt that this by-law is self-executing and that its violation operates to destroy the insurance contract when it appears the death of the member resulted as here from following such proscribed occupation. The occupation of railroad switch-man in which and because of which the insured came to his death is proscribed in by-law No. 272 as one .against the hazards of which defendant does not undertake to insure. The case concedes that the insured came to his death while engaged in such an occupation and because of that fact. The first subdivision of bylaw No. 272a, above copied, provides in plain terms that if an insured member shall enter upon oí become engaged in a proscribed occupation, he “shall thereby and thereupon stand suspended from all rights and privileges in the order, cease to be in good standing, forfeit all the rights and privileges of membership and in his benefit certificate, which shall be void, and no
It is competent for fraternal beneficiary societies and their members to thus provide in the contract of insurance and by-laws, and the courts universally sustain and enforce such contracts as made. [Smith v. Knights of Father Mathew, 36 Mo. App. 184; Pauley v. Modern Woodmen, 113 Mo. App. 473, 87 S. W. 990; Lavin v. A. O. U. W., 104 Mo. App. 1, 78 S. W. 325; Borgraefe v. Sup. Lodge, 22 Mo. App. 127.] It is true it appears the insured paid his last assessment and dues on his membership and policy in the sum of sixty-five cents on or about the fifteenth day of March, 1910 while he was engaged in the occupation of a railroad switchman, but it is agreed in the case that at the time of the payment of said assessment defendant did not know of his being so engaged and, of course, no waiver may be predicated thereon in view of this fact.
It is true the second subdivision of by-law No. 272a, above copied, provides the regent shall announce the suspension in council, etc., its date, “if known,” and notify the supreme secretary giving the member’s name, the cause of the suspension, number of the cer
It appears that after the insured met his death, J. C. Schall, secretary of Hickory Council, No. 766 in St. Louis, of which the insured was a member, wrote plaintiffs’ mother several letters to the effect that the claim would be paid as soon as full and satisfactory proofs of death were made. At the time these letters were written, it does- not appear that Schall, the secretary of the local council, had any knowledge whatever touching insured’s occupation nor as to what occasioned his death. It appears that Schall was endeavoring to accumulate the facts touching the matter by writing to St. Paul, where the insured came to his death, and having certain affidavits made. In one of his letters to the plaintiffs’ representative he said, “You may say to Mr. Clair as soon as I have the papers returned they will have prompt attention and be forwarded to our supreme secretary at Boston for payment, as soon as I hear from St. Paul, I will forward you several blanks to be filled out and affidavits made thereto. ’ ’ In another letter, the local secretary said, “I regret very much to cause you all this trouble and that we have not already been able to dispose of this case for settlement. If he had died in St. Louis a settlement of your claim would have been accomplished in a few-weeks. The matter is having my attention and as soon as I can get all the proper blanks filled out, you will receive the draft accordingly.” Because the secretary of the local council thus wrote plaintiffs’ representatives after the death of the insured, it is insisted that the forfeiture of the insurance was waived, for it is said these letters manifest an intention to pay the amount notwithstanding that fact. Of this it would be sufficient to say the court found the fact to be otherwise. But to discuss itr — there is naught in the case.
It appears that in obedience to the suggestion of Schall in his letters, plaintiffs expended from two to five dollars and inconvenienced themselves somewhat in preparing affidavits and proofs of death to be transmitted to defendant through Schall. Because of this it is urged defendant is estopped to assert the forfeiture of the insurance. There can be no doubt of the general proposition that any agreement or course of action on the part of an insurance company which leads a beneficiary to honestly believe that by conforming thereto a forfeiture of the policy will not be insisted upon, followed by due conformity on the part of such beneficiary, so that expense and inconvenience are incurred, will and ought to estop the company from thereafter insisting upon the forfeiture, although it may be otherwise properly claimed under- the express letter of the contract. [See Bacon, Benefit Societies (3 Ed.), sec. 431a.] But the doctrine thus stated presupposes authority in the person purporting to represent the insurance company as a predicate of the estoppel, and it is certain that it does not obtain where no such authority appears. The estoppel sought to be invoked here proceeds entirely from the fact that Schall, the local secretary, advised the beneficiaries to prepare the proofs and stated that a draft for the amount of the insurance would be forthcoming thereafter. It appearing, as it does, that Schall was without authority whatever to represent the defendant or