190 Mo. App. 606 | Mo. Ct. App. | 1915
This is a suit upon a benefit certificate issued by the defendant, a fraternal beneficiary corporation, on December 4, 1906, to Albert H. Fisher,
This suit was instituted on September 6, 1907, and the case has had two trials below. The second trial, before the court and a jury, resulted in a verdict and judgment in plaintiff’s favor for the amount provided to be paid where death occurs within one year, to-wit, $333.33 with interest thereon from the date of the institution of the suit, the total being $446; from which judgment the defendant prosecutes this appeal.
It is unnecessary to state even the substance of the pleadings, which are lengthy, or to rehearse the evidence in detail. We shall merely make such reference to the pleadings and proof as may be necessary to the determination of the questions involved in the appeal.
It is undisputed that plaintiff’s husband died of tubercular laryngitis. Defendant contended below that Fisher was suffering from the disease at the time of the issuance of the benefit certificate sued upon, and that he gave false answers to questions relating to the condition of his health and prior .treatment received by him, propounded to him in the course of his medical examination in .connection with his application for membership in the order. Much of the testimony relates to this phase of the controversy, which is out of the ease on appeal. It is tacitly conceded that the matter is now concluded by the jury’s verdict, for the assignments of error pertain to other questions to be presently noticed.
But these papers were subsequently put in evidence by the defendant. The objection to their introduction, when offered during the cross-examination of plaintiff’s witness, was sustained solely upon the ground that orderly procedure required defendant to wait until it was into its defense before introducing its evidence. There was no error in this. And if there was any error in overruling the demurrer at the close of plaintiff’s case because of the lack of this evidence, such error is not here available to the defendant. While defendant did not, by introducing evidence, waive its demurrer, the propriety of the action of the lower court in overruling defendant’s demurrer and sending the case to the jury, is now to be determined with regard to all of the evidence adduced, no matter by whom offered.
II. A further argument is that plaintiff failed to make out a prima-facie case by failing to adduce evidence that proofs of death had been furnished. Though the petition avers that proofs of death were furnished defendant on forms prescribed by it, there is no evidence in the record touching the matter. But defendant denied liability on the benefit certificate for the alleged reason, among other things, that Fisher never became a member of defendant order. Such has been defendant’s attitude throughout, and the point is
III. The answer sets up that Fisher never became a member of the order for the reason that he was never initiated therein in accordance with its laws. Touching this matter there is a vast deal of evidence in the record pro and con, the details of which it is unnecessary to notice. There is substantial evidence tending to show that defendant’s by.-laws were complied with in this respect and that Fisher became and was a member of the order. In this connection it should be borne in mind that the benefit certificate is prima-facie evidence of his membership in the order, and the burden was on the defendant to establish the contrary. [See Mulroy v. Knights of Honor, 28 Mo. App. 463; Keily v. K. of F. M., 179 Mo. App. 615, 162 S. W. 682.] The presumption is that defendant woiild not have issued its certificate to one not a member and who could not lawfully receive it.
A by-law of defendant order shown in evidence provides that “no benefit certificate shall be issued by the supreme secretary until after the medical examination shall have been approved by the supreme medical examiner, and the person has been initiated in some lodge of this order or obligated in the first degree.” Evidence adduced in plaintiff’s behalf tends to show that Fisher went from his home with one Warren who had solicited him and his wife to become members of the order, and attended the organization meeting of the
The fact that Fisher left his home with Warren for this purpose was testified to by plaintiff and other witnesses present at the time. It was stipulated by counsel that Warren, if present as a witness at this last trial, would testify that he so accompanied Fisher to the lodge hall and, “in the presence of numerous persons then and there assembled, saw and heard said Fisher obligated under the ritual obligation of the defendant, by John D. O’Keefe, the then grand protector of Missouri and also the then supreme vice-protector of the defendant order.” O’Keefe testified that Warren requested him to obligate an applicant, whose name he did not remember, who wished to go home to allow his “family” to come to the meeting; that thereupon the witness, acting in his official capacity, went to the altar in the center of the lodge room and administered the obligation to such applicant, and gave him the passwords and told him that ‘ ‘ at the next meeting he would witness the entire initiatory ceremonies.” And other witnesses testified that some one was so obligated that evening in advance of the regular program.
The contention that it is necessary for Fisher to be “initiated” in some way other than by being merely obligated cannot be sustained. It is argued that the testimony of O’Keefe shows that further “initiatory ceremonies” were necessary in order to constitute Fisher a member. But plaintiff is not bound by everything that this witness may have said. Nor is there anything to make it appear that the further ceremonies thus referred to were in anywise necessary to membership in the order, or a prerequisite to the issuance of
TV. Complaint is made of an instruction given for plaintiff which told the jury that if they found that Fisher did not “in fact with his own hand attach his signature to the papers in evidence, and if his name was signed thereto by some other person and he thereupon acknowledged, adopted and declared such signature as his own, such act on his part would, in law, have the effect of making it his signature with as full force and effect as if written there with his own hand. ’ ’
This instruction had reference to the signing of Fisher’s application for membership. The complaint against it is that it is not supported by the evidence. Plaintiff testified that her husband signed the application in his own hand; that though he could scarcely read at all she had taught him to sign his name, and that the signature was his own. However, expert testimony adduced by defendant tended to show otherwise, and to make it appear that plaintiff had signed her husband’s name to the application. It is unnecessary to rehearse this testimony. It could have had no effect
It is argued that if the signature in question was not made by Fisher’s own hand, there is no evidence that he adopted as his own a signature signed by someone else. But it is to be inferred from the evidence that Fisher intended the signature appearing upon this paper to be taken as and for his signature in any event. If he did not sign the paper himself, the inference is that he adopted the signature appearing thereon.
There was clearly no error in the giving of this instruction.
Other questions need not be noticed. We have carefully examined the somewhat voluminous record before us and have been unable to discover any reversible error therein. The judgment should therefore be affirmed. It is so ordered.
