167 Mo. App. 19 | Mo. Ct. App. | 1912
Mary E. Hill was a member of the Brotherhood of American Yeomen and there was issued to her, as such member, a certificate of insurance for $1000 payable to her husband at her death. She died on the 30th of April, 1910. Her father, mother and her three small children claim that a few days before her death she changed the beneficiary from her husband to them. The association paid the money into court and asked that the surviving husband and these parties be required to interplead and that their rights be determined by the court. The judgment was for the father, mother and the children.
It appears that the rules of the association permitted a change of beneficiary by returning the certificate “to the correspondent of his homestead together with his written request indorsed thereon; . . . Said request shall be accompanied by a fee of fifty cents and the chief correspondent shall indorse on said certificate said change, and return it to the member.”
The Hills lived in Kansas, and her father and mother lived in Sullivan county, Missouri, near the center of the north part of the state. She had been in failing health a long time before her death. Her husband deserted her and she found she would have to go to her father’s. On the- 28th of April she requested her brother to get her certificate from the bank where she left it for safe-keeping. She also sent word to a Mrs. Dairy, who was ‘ ‘ correspondent of her homestead,” to come to see her. When the latter came, Mrs. Hill told her she wanted the beneficiary changed
It will be noticed that the direction for change of beneficiary, fell short of the requirement of the rule, in that there was no written request from Mrs. Hill for the change and the “chief correspondent” did not indorse the change on the certificate and return it to Mrs. Hill. Notwithstanding this, we think the change >was sufficiently evidenced to entitle the father, mother and children to the insurance, and to justify the association in. paying to them. The correspondent was made the agent of the association to take the request for a change, to receive pay therefor and convey or '•send it to the “chief correspondent,” whom we assume to be a different person from the “correspondent of the homestead.” It was the duty of the chief correspondent to indorse the change and return to the member. This was not done. So it appears that every irregularity was caused by the association’s agents, unless it be that of failure to make the request in writing. But, practically speaking, that also was a failure caused by the association’s agent. She received the request by writing on the envelope in which the certificate was, accepted the fee therefor and took the certificate away with her. She accepted the written indorsement made by herself as Mrs. Hill’s written request. Mrs. Hill was thereafter helpless. She could not force the “chief correspondent” to indorse the
It is clear that the husband, as original beneficiary, had no vested interest in the certificate and that Mrs. Hill had a right to change it. [Woodmen of the World v. Broadwell, 114 Mo. App. 471.] The only question is, did she change it in substantial compliance with the rules of the association, or within any of the exceptions to literal compliance. In Grand Lodge, A. O. U. W., v. McFadden, 213 Mo. 269, it is said that: “The general rule that the insured is bound to make such change of beneficiary in the manner pointed out by the policy and by-laws of the association is subject to three exceptions.
“1st. If the society has waived a strict compliance with its own rules, and, in pursuance of a request of the insured, to change his beneficiary, has issued a new certificate, the original beneficiary will not be heard to complain that the course indicated by the regulations was not pursued.
“2d. If it be beyond the power of the insured to comply literally with the regulations, a court of equity will treat the change as having been legally made.
“3d. If the insured has pursued the course pointed out by the laws of the association and has done all in his power to change the beneficiary, but, before the new certificate is actually issued, he dies, a court of equity will treat, the certificate as having been actually issued.”
Literal exactness is not required. [Henderson v. M. W. A., 163 Mo. App. 186.]
The correspondent who came to Mrs. Hill’s house was the association’s agent; and we think there is no doubt but that the association, through such agent, waived the signature of Mrs. Hill to the writing made by the agent; and that by indorsing the writing or notation for change on the back of the envelope, it
Bnt it is said that there was nothing to show that Mrs. Dairy was in fact the correspondent of the association except what she herself stated and represented. There was more than that. She had collected dues from Mrs. Hill and given receipts on printed blanks at different times prior to this; and these were evidently received by the association, as no complaint was suggested of any default in payment. This was sufficient to justify a finding of her official position.
We have been cited to Ables v. Ackley, 133 Mo. App. 594; Londry v. Sovereign Camp, 140 Mo. App. 45; Order of Foresters v. Keliher, 36 Ore. 501; Abbott v. Supreme Colony, 190 Mass. 67; and Shuman v. A. O. U. W., 110 Ia. 642. But there are many distinguishing features between those cases and this. In this case the desertion of the beneficiary’s husband, doubtless the cause of the change, had only taken place a few days before. It is not going too far to assume that the wife, then on the verge of death, took as quick action as could, in reason or by any fair intendment, be expected, and any failure of literal compliance with the rules of the association was, as we have said, induced by the conduct of its agent.
The judgment is affirmed.