Loyd v. Modern Woodmen of America
87 S.W. 530
Mo. Ct. App.
1905
Check Treatment
BLAND, P. J.

(after stating the facts). — In Baltzell v. M. W. of A., 98 Mo. App. 153, the Kansas City Court of Appeals held'that the defendant was not a fraternal benefit society for the reason it was not required to do business under a lodge system with ritualistic form of work and a representative form of government. -The record in the Baitzell case shows the society was incorporated under the laws of Illinois of 1883 but did not show the act of 1893 or that the society had been per*38mitted to do business under the later act as a fraternal benefit society, nor did the record show it had adopted by-laws, under the provisions of which it was doing business under the lodge system with ritualistic form of work and a representative form of government and for these reasons is not authority in this case.

Our statute in respect to fraternal benefit societies (sec. 1408, R. S. 1899), defines fraternal benefit societies in the exact language of the Illinois statute of 1893 and since by said section 1408, foreign benefit societies are placed upon the same footing as domestic ones, when licensed to do business in this State [Hudnall v. M. W. of A., 103 Mo. App. 356, 77. S. W. 84], it only remains on this branch of the case to inquire whether or not the defendant is a fraternal benefit society as defined by both the Missouri and the Illinois statutes. It has a lodge system with ritualistic form of work and a representative form of government and is carried on for the sole benefit of its members and their beneficiaries and not for profit, and hence fills every term of the definition of a fraternal benefit society. But it is contended by respondent that its charter is broader than the statute in that its charter authorizes it to issue benefit certificates for the benefit of legatees of its members. The original charter so provides and so does the act of 1883 under which the defendant was incorporated. But by accepting the provisions of the act of 1893 and by being authorized to do business under that act, the exercise of its charter powers are restricted to issuing benefit certificates to the class of beneficiaries named in the act. Legatees not being named as one of the class so much of defendant’s charter as authorized insurance for the benefit of legatees was abrogated by the society accepting the provisions of the act of 1893, for its charter powers are necessarily restricted to the authority conferred by that act. That act provides for the payment of death benefits to families, heirs, blood relatives, affianced husbands or affianced wives or to persons dependent upon the mem*39ber, the same class designated in the Missouri law. But if other classes were designated in the Illinois act in its Missouri business, the defendant being on the same footing as domestic fraternal societies, could not make any class of persons beneficiaries not named in the Missouri law. And we conclude that under the facts shown by the record, there is not a shadow of a doubt that the defendant is a fraternal beneficiary society and as such, exempt from the general insurance laws of the State.,

2. Did the certificate of insurance sued on become a binding contract? is the next important question for consideration. The application for the insurance and the by-laws of the order are by express agreement, made a part of the contract of insurance and are therefore as binding upon both parties to the certificate as if they had been bodily incorporated in it. As a condition precedent to the delivery and taking effect of the certificate as a valid and binding' contract, it was agreed and so stipulated in the by-laws that James W, Loyd should be adopted into the local camp and there was no way provided by which Loyd could become a member of the society except by being inducted into the order through the initiatory service and by taking upon himself the obligations required by the rules and laws of the society. This was as necessary to constitute him a member as is baptism necessary to induct one. into the Christian Church. The condition, therefore, that he should be adopted into the order before receiving a benefit certificate, was not a mere form or non-essential requirement, but was necessary one under the charter of the society. Loyd could not be qualified to become a holder of a benefit certificate unless he was a member and he could not be a member until he was adopted. But respondent contends that the initiatory ceremonies were waived in Loyd’s case. There is nothing in the record to show or tending to show a waiver. What it does sho w is that three officers of the local camp agreed to deliver the certificate and caused it to be done in violation of the by-laws of *40the order and if their conduct should be upheld, it would thwart the very purposes and objects of the society by sanctioning the issuance of benefit certificates to nonmembers. It was no more competent for these officers to sign and deliver the certificate to Loyd prior to his adoption into the camp than it would have been competent for a minister of the Baptist Church to have received him into that ancient Christian denomination without baptism by immersion. Loyd is conclusively presumed to have known the by-laws, for they are a part of his benefit certificate. He knew the officers who attempted the waiver, if it may be called a waiver, were going beyond the scope of their authority; that they could not waive his adoption as a condition precedent to his right to receive the certificate. Knowing these facts, his beneficiary is not in a situation to set up the waiver for no one can bind a principal by an act of an agent which he knew at the time the agent had no authority to perform.

The case of Lavin v. A. O. U. W., 104 Mo. App. 1, 78 S. W. 325, and cases cited therein settle this contention against respondent and settles as well, that under the uncontradicted evidence in the case, the certificate sued on never became a binding contract and that no right to recover existed. The judgment is reversed.

Goode, J., and Nortoni, J., concur.