85 Mo. App. 96 | Mo. Ct. App. | 1900
— The defendant society is a fraternal order, incorporated under the laws of the state of Nebraska. In July, 1895, plaintiff’s husband became a member thereof and there was issued to him a benefit certificate of insurance for $2,000 payable to plaintiff on his death. He died in October, 1898, and demand was made on defendant, after due proof of death, to make an assessment for the payment of the certificate. Defendant refused and plaintiff brought this action stating these facts.
Defendant’s answer set up its being a Nebraska corporation and that it was authorized to do business in the state of Missouri as a secret benevolent beneficiary association. That its method of doing business in pursuance of its constitution and by-laws was to organize subordinate camps or lodges in various localities and receive members who filled the requirements of the order. That the defendant was the suprem,e lodge with power and authority to make all laws, rules and regulations for the government of the fraternity and its membership. That by its constitution and by-laws in force on the first day of May, 1897, and at all times thereafter it was and is provided as follows:
*100 “The following conditions shall be made a part of every beneficiary certificate and shall be binding upon both member and order: That if the member-meets death by his own hand or act, whether sane or insane, his beneficiary certificate shall be null and void and of no effect, and all rights and benefits which may have accrued on account thereof shall be absolutely forfeited without notice or service.’ ” Defendant states that the beneficiary certificate sued on recites on its face, “that it is issued and accepted subject to all laws, rules and regulations then in force or thereafter enacted.” And that plaintiff’s husband died, at the date stated in the petition, by committing suicide. The court, on plaintiff’s motion, struck out that portion of the answer setting up the by-laws and the acceptance of the certificate which we have placed in quotation marks. The defendant refused to plead further and judgment was rendered for plaintiff.
Plaintiff claims that the fact of deceased having committed suicide is no defense. The general statute, section 5855, Revised Statutes 1889, provides that in actions on insurance policies issued by any company doing business in the state, suicide shall not be a defense unless the policy was-taken out with a view to suicide; and it is not pretended that deceased had such intention at that time. But fraternal societies are, in another statute, exempted from the provisions of that act. Sec. 2823, R. S. 1889. So, if the latter section applies to defendant it may plead and prove suicide in defense and the court’s action was erroneous.
But plaintiff contends it does not apply to this defendant for the reason that it is a nonresident corporation and that the exempting section (2823) only applies to domestic corporations and therefore section 5855 disallowing defense of suicide applies to defendant, and cites in support of this the case, decided by St. Louis Court of Appeals, of Toomey
It will be noticed that section 5855 applies to any general life insurance “company doing business in this state,” that is, whether foreign or domestic. But section 2823, excepting fraternal companies from the operation of section 5855, shows from the language that it only contemplates home companies. Besides, as is pointed out in Toomey v. Supreme Lodge, supra, the history of the legislation of the state, on this subject, shows that foreign companies or associations were purposely omitted from section 2823. The case of Toomey v. Supreme Lodge, as before stated, was in the supreme court on transfer from the St. Louis Court of Appeals (147 Mo. 129) and we can not find any ground for defendant’s contention that it was overruled in the latter court. The latter court came to the same conclusion announced by the court of appeals, and though arriving at that conclusion by a different process of reasoning, the opinion of the former court, in the respect here considered, was in no wise questioned. The remark of the court that the liability of the defendant in that case “depended upon the class to which it belonged” was made in the course of drawing the distinction between the three classes of insurance in this state. Considering the approval given to the reasoning of the opinion of the court of appeals, it can not be supposed that the Supreme Court intended by that remark to state that a foreign fraternal association would be exempt from section 5855 without first having complied with the statute relating to foreign companies.
But by the act of 1897 (Laws 1897, p. 132) it was provided that, on compliance with certain provisions therein, foreign companies would be exempted from the provisions of
But defendant claims that conceding the law of 1897 is not applicable to this contract, and that sections 2823 and 2824 of the general statutes are likewise not applicable, yet it may still claim the right to defend for suicide on the ground that by force of its by-law which the court struck out of the answer, and by which deceased, as a member, was bound, it was declared that suicide should render the certificate of insurance void. We reject this view for two reasons: First, when we place the certificate or policy issued by defendant outside the protection of either section 2823 or the law of 1897, it necessarily falls under section 5855, which, as we have seen, declares that a policy issued by “any company doing business in this state” shall not be open to the defense of suicide. Defendant certainly is such a company and must fall within the section; second, the by-law relied upon which was stricken from the answer clearly refers to certificates thereafter issued. It does not refer to those already in existence. What we have said as to the presumption against retrospective laws will apply to the by-laws of a corporation.
But it is said that the certificate issued to deceased contained a stipulation that he should be bound by any law of the association passed thereafter. If we grant the power to
On tbe whole record we think tbe judgment should be affirmed.
