140 Mo. App. 45 | Mo. Ct. App. | 1910
This suit is to recover on a benefit certificate issued by the Woodmen of the World to William H. Nall, for the beneficiary therein named Malvina E. Nall, .his mother, on the 16th day of July, 1894.. The insured died in March, 1906, in good standing having paid all his dues to the society up to that time. Mrs. Nall, the beneficiary, died within a few days thereafter.
The plaintiff claims the benefit of the insurance on the following grounds, viz.: That during the fall of 1895, she received and accepted an offer of- marriage from the insured; that at all times since said date said insured acknowledged her as his affianced wife; and that at the time of her acceptance of said offer of marriage and in consideration of her promise and for. other good and valuable considerations he agreed to and did name plaintiff as the beneficiary in said certificate and informed her that under the laws and by-laws of the
The evidence shows that plaintiff loaned the insured divers sums of money. On December 14, 1895, he borrowed from her $310, due in one year for which he executed his promissory note. At one other time he borrowed $50, and at another time $360, for which he merely acknowledged receipt by memorandum in writing. On December 14, 1898, he borrowed $100, as evidenced by a writing as follows:
“I borrowed from Miss L. F. Londry, 1233 Grand Avenue, Room 16, my intended wife, the sum of one hundred dollars, for which all money I have borrowed from her is covered by an insurance policy which I want her to have in case of my death..
“W. H. Nall.”
There was abundant evidence going to show that an engagement to marry existed between the two, and the reason he gave for not consummating it was, that he could not afford to do so while his mother lived as he would have to support her.
There was no proof of assignment by the deceased to the plaintiff of the benefit certificate, nor was there any tending to show that he a.t any time made any promise to that effect, or that the society knew of the relation existing between him and plaintiff.
The defendant acknowledged its liability, but denied that plaintiff was entitled to the benefits of the certificate, and set up that it was payable to Thomas Wilson, the administrator of the estate of Malvina E. Nall, the beneficiary named. Wilson voluntarily ap
The defendants offered no evidence. The court instructed the jury to return a verdict in favor of the administrator and against plaintiff, and against the defendant society for the face of the policy and interest. The jury returned a verdict as directed, upon which judgment was entered and plaintiff appealed.
If the plaintiff was affianced to be married to the deceased she was a proper subject as a beneficiary, and that she Avas so we think, is established by the evidence.
The certificate was issued and accepted subject to the constitution, Ioavs and by-laAvs of the association. In the by-laws of the association it is provided that: “Should a member desire to change his beneficiary or beneficiaries, he can do so upon the payment of a fee of one dollar and the surrender of his certificate to the clerk of his camp Avith the desired change noted thereon. The certificate and fee shall be fonvarded to the sovereign clerk or head clerk, who shall issue and return a neAV certificate as requested.” The deceased did not as we have seen at any time attempt to comply with the law in order to change the beneficiary in his certificate from that of his mother to the plaintiff.
It is Avell-settled Iuav, that the insured has no vested interest in the certificate, but he may change his beneficiary at will, if he does so according to the rules and regulations of the association providing for such change. [Grand Lodge A. O. U. W. v. O’Malley, 114 Mo. App. 191.] The statute provides in cases Avhere the beneficiary contracts to pay the member’s assessments and dues and does either, does not deprive the member of the right to change the name of the beneficiary or revoke the certificate, provided that such change or revocation be done in the manner provided by the laws of the association. [R. S. 1899, sec. 1417.] We have understood always that in order to change the beneficiary, the insured must substantially comply with the provisions of
The plaintiff seeks to' avoid the effect of the said law of the association on the ground that the association waived compliance therewith in a subsequent by-law. It reads: “After a beneficiary certificate shall have been in force for five consecutive years immediately preceding the death of a member, the sovereign camp shall not contest its payment on any grounds whatever, except the sovereign died by the hands of the beneficiary, or beneficiaries named therein and it be clearly shown that the same was not an accident.” We cannot see that this by-law has any application to the case as the defendant is in no way contesting its liability, but on the contrary admits that it is liable. The defendant only asks that the court adjudge to whom the benefit shall be paid.
The plaintiff contends that the defendant association by its original answer waived a compliance with said law. We have examined the answer and we find nothing therein that in the least degree tends to show any such waiver, and besides it did not have the power to do so after the death of the member.
Much of plaintiff’s argument is taken up with her contention that the member had a vested interest in the benefit certificate in question and could therefore deal with it as with other property belonging to him, and has cited authorities tending to support her vieAvs, but as such is not the law in this State as we have shown, we refrain from comment on this position. We do not believe there is a single debatable question raised on the appeal. Affirmed.