| Mo. Ct. App. | Jul 12, 1918
OPINION.
(after stating' the facts as above). — It is contended by learned counsel for respondents that the finding of the court, that the defendant at all times prior to the issue of the benefit certificate, in 1908, and ever since, has been duly authorized and empowered to do business in this State as a fraternal beneficiary association and has complied with the statutes of this State in reference to making annual reports, is not supported by any evidence.
It is true that we do not find any direct evidence in the case, as to the making of the reports, but that may be inferred from'the fact of evidence it had been licensed each year to do business in the State. There is evidence that when this benefit certificate was issued, the defendant had complied with our laws and was authorized to do business in this State as a .fraternal beneficiary association, and that it was such within the meaning of our laws. . The president of the society, without objection, testified positively that the defendant, incorporated in Illinois in April, 1897, as a fraternal beneficiary society, had continuously operated since that date until March 1, 1915, and has been authorized and licensed each year as a fraternal beneficiary society, having a lodge system, ritualistic form of work and representative form of government, and has operated in the State of Missouri, having a license in this State to so operate as a fraternal beneficiary society since 1898, and has filed with the superintendent its authorization for him to accept service for it . in this State. Furthermore, this appears at page 25 of the abstract and directly following the reading of the, above deposition:
*104 “Plaintiffs concede that this defendant is licensed as a fraternal beneficiary association in Missouri.”
Reading this concession in connection with the testimony of the president of the plaintiff, it is entirely clear that at the time this certificate was issued to the member, Mrs. Nicholson, this defendant a foreign corporation, was duly authorized to do business in this State as a fraternal beneficiary association under the laws of our State. It has been decided in many cases that the authorization to a foreign corporation to do business in the State must precede the issue of a certificate of membership or the benefit certificate, if the association desires to avail itself of the benefits of our law governing fraternal beneficiary associations. As see Schmidt v. Supreme Court United Order of Foresters, 228 Mo. 675" court="Mo." date_filed="1910-06-14" href="https://app.midpage.ai/document/schmidt-v-supreme-court-united-order-of-foresters-8017245?utm_source=webapp" opinion_id="8017245">228 Mo. 675, 129 S. W. 653. When it appears, however, that that authorization precedes the issue of the certificate and has been kept up down to. the date of its issue, and ever since, is authorized to act under our laws and is entitled to all the benefits and provisions relating to such association. When, as here, the court makes its finding of that fact, under the statute, that finding is binding on the appellate court, if supported by any substantial evidence. [American Brewing Co. v. City of St. Louis, 209 Mo. 600" court="Mo." date_filed="1908-02-26" href="https://app.midpage.ai/document/american-brewing-co-v-city-of-st-louis-8016402?utm_source=webapp" opinion_id="8016402">209 Mo. 600, l. c. 699, 108 S.W. 1" court="Mo." date_filed="1908-02-26" href="https://app.midpage.ai/document/american-brewing-co-v-city-of-st-louis-8016402?utm_source=webapp" opinion_id="8016402">108 S. W. 1.]
Furthermore, we find no objection or exception on the part of the respondents to this part of the finding of the learned trial court. To avail themselves of this point, they should have excepted to that part of the finding.
Furthermore, no suggestion whatever was made at the trial of the case that at the time when this certificate was issued, the defendant was not entitled to do business in our State in accordance with the provisions of what is now article 9, chapter 61, Revised Statutes 1909.
So we conclude that appellant, the Mutual Protective League, when it issued the benefit certificate here involved, was a fraternal beneficiary association
The question really turns here upon the conclusion arrived at by the learned trial court as to whether clause 5 is against public policy and void. In point of fact, counsel for respondents, the above point out of the way, seem to concede that, and counsel for appellant claim it as the only question in the case, the latter claiming that if the learned trial court had not so found, his finding and judgment would have been for appellant, defendant below. Carefully reading the finding of facts, we think that is true.
We are unable to see why this clause 5, in so much of it as provided that if the member holding the certificate shall die “by the hands of the beneficiary or beneficiaries named therein, except by accident . . . this certificate shall be null and void and of no effect,” is “invalid, unreasonable and against public policy and is consequently void,” as found by the learned trial court. The public policy of a State is to be found as expressed in its Constitution and laws, .and in the decisions of its highest court, and not from general considerations of the supposed public interests and policy of the State beyond what such sources of information make know to the court. [Vidal v. Girard, 2 How. (U. S.) 127; Hartford F. Ins. Co. v. Chicago, M. & St. P. R. Co., 175 U.S. 91" court="SCOTUS" date_filed="1899-11-06" href="https://app.midpage.ai/document/hartford-fire-insurance-v-chicago-milwaukee--st-paul-railway-co-95108?utm_source=webapp" opinion_id="95108">175 U. S. 91, l. c. 100, and cases there cited] We find no law of our state nor any decision of our Supreme Court, nor anything in
A case somewhat similar to this was considered by the Springfield Court of Appeals, in Greer v. Supreme Tribe of Ben Hur, 195 Mo. App. 336, 190 S. W. 72. In that case it was provided that there should be a forfeiture of the benefits, if the member was killed by any of the beneficiaries. That is somewhat different from the clause here, which provides that if he is killed by a beneficiary or beneficiaries, but in our opinion that is not here a distinction of any substance. Authority is cited in the Greer Case to the effect that while forfeitures are never favored, that if, upon a reasonable construction, it appears that parties contracted for forfeiture upon certain conditions, it only remains for the courts to enforce the contract as the parties made it. It is there well said, and but the statement of a settled rule, that is is neither unlawful nor against public policy for a life insurance company to stipulate that upon certain conditions or contingencies policies shall become void. That court further says (l. c. 342): “There can be no doubt, we think, that when a policy contains a provision designed to remove a temptation of the beneficiary to prematurely end the insured’s life it means the beneficiary who is, on the face of the policy, named or made such directly or indirectly. ’ ’ The Spring'field Court then refers to the case of Grand Circle Women of Woodcraft v. Rausch, otherwise cited as Women of Woodcraft v. Rausch, 24 Colo. Ct. of App., 304, 134 Pac. 141. In the Colorado Case the provision in the membership certificate was, “If the member to whom this certificate shall be issued shall be murdered by any beneficiary named herein, or should any beneficiary named in this certificate cause the death of such member directly or indirectly, intentionally or uninten
The provision in the policy or benefit certificate in this Colorado Case is (l. c. 308): “If the member to whom this certificate shall be issued shall be murdered by any beneficiary named herein ... or should any beneficiary named in this certificate . . . cause the death of such member directly or indirectly, intentionally or accidentally, then any benefits which such beneficiary might otherwise have received under the provisions of this certificate shall revert to the Grand Circle.” In that case the defendant was a fraternal benefit society created under the laws of Colorado. The plaintiffs, respondents in the appellate court, were represented by their duly qualified and acting guardian, they being minors and sole heirs of the member and of her husband, both deceased.
Our conclusion is that the clause in the contract which was adjudicated as void for contravention of public policy, is a valid clause and under its provisions plaintiffs cannot recover.
It is said that that clause is indefinite in saying that if the act of killing is. caused by the “beneficiary or beneficiaries” that it is not applicable here because the act of killing was by one of two beneficiaries. We do not think that argument is sound. In the first place, that is a very technical construction of the clause; in the next place, the other beneficiary, the adopted son, dying prior to his mother, when he died, under the terms of the policy or benefit certificate, lost all interest in it, and the sole beneficiary became the husband, and the whole of the benefit, and the right to the whole of the fund of $1000, fell to the husband, John W. Nicholson. When the wife died the husband would have received the whole of the benefit. But he murdered his wife, and when she died in consequence of his murderous assault, he then, after her death at his hands, but not before, forfeited all benefit. So the learned trial court found, finding that “by the terms of said benefit certificate said John. W. Nicholson became the sole beneficiary thereunder and entitled to the total sum due thereunder, if not precluded from receiving said benefit by having murdered his wife, as hereinafter set forth, or if said benefit certificate was not rendered void by his acts on account of the (5th) clause. . . . That by reason of having murdered his wife, . . . John W. Nicholson cannot recover at law the proceeds of said benefit certificate.” We know of no provision of law, outside of the certificate, that would prevent even a murderer, being the beneficiary, from recovering. He was the sole beneficiary. In no event could the benefit, or any part of
Learned counsel for respondents argue, in support of the conclusion of the learned trial judge, that he probably based it on the theory that if the clause be given the construction desired by the company “that, at any time, the company by connivance with only one of the beneficiaries could forfeit the insurance;” and they argue “that such a possibility would be a greater incentive to the company than to the insured.” The sum of this is, that to avoid payment, the company planned murder. This argument answers itself.
The result is that the judgment of the circuit court must be reversed.