74 F. 775 | 8th Cir. | 1896
after stating the case as above, delivered the opinion of the court.
The contract sued upon in this case is, in form and substance, a contract of life insurance, as has heretofore been held in the state of Missouri, where it was executed. State v. Merchants’ Exchange Mut. Benev. Soc., 72 Mo. 146, 160. It was delivered by the defendant company, within the state of Missouri, to a resident of the state, while the company was there doing business through the agency of a local council. For these reasons the contract is governed, as to the obligations thereby incurred and imposed, by the laws of the state of Missouri; and suicide cannot be pleaded as a defense to a suit to enforce the contract, unless some provision is found in the statutes of said state which exempts it from the oper
Chapter 42 of the Revised Statutes of Missouri of 1889 relates entirely to the organization of corporations of various kindsj and prescribes their powers and duties. Article 10 of that chapter (Rev. St. Mo. 1889, p. 719) relates to the organization of “benevolent, religious, scientific, fraternal-beneficial, educational and miscellaneous associations.” In this article are found the following provisions, to wit:
“Soc. 2821. Any number of persons, not less tlian three, who shall have associated themselves by articles of agreement in writing, as a society, company, association or organization formed i'or benevolent, religions, scientific, fraternal-beneficial or educational purposes, may be consolidated and united into a corporation. Such articles of agreement may be organic regulations, or a constitution, or other form of association, and any corporate name, not already assumed by another corporation, may be chosen as the title of the corporation: provided, always, that the purpose and scope of the association shall be clearly and fully set forth.
“Sec. 2822. The persons holding the offices respectively of president, secretary and treasurer of the association, or other chief officers, by whatever name they may be known, shall submit to the circuit court having jurisdiction in the city or county where such association is located, the articles of agreement, with a petition praying for a pro forma decree thereon. If the court shall be of the opinion that such articles of agreement and purposes of association come properly within the purview of this article, and are not inconsistent with the constitution or laws of the United States or of this state, the court shall enter of record an order to that effect, a certified copy of which order shall, by the clerk, be indorsed upon or attached to said articles. * * * And whenever the judge to whom such petition shall have been presented shall entertain any doubt as to the lawfulness or public usefulness of the proposed corporation, it shall be Ms duty to appoint some competent attorney as a friend of the court, whose duty it shall be to examine said petition and*778 show cause, if any there-he, on some day to he fixed hy the court, why the prayer of said petition should not he granted, and said attorney shall not he confined in his examination to said petition and articles of association, but may introduce such testimony as may he available and proper in order to fully disclose the true purposes of the association; and upon the hearing thereof the court shall make such further order granting or dismissing said petition as to it may seem best, and upon the granting of such petition, the petitioners shall cause the articles of agreement, with the certificate aforesaid, to be recorded in the office of the recorder of deeds of the county in which the association is located, and then filed in the office of the secretary of state. * * *
• “Sec. 2823. Fraternal-beneficial societies may provide for the relief and aid of their members and families, widows, orphans or other kindred dependents of deceased members, or for assisting such as may be sick or disabled, from the proceeds of assessments upon the members of such society or association; and to that end may issue to its members beneficial certificates, payable at such time and in such manner as shall be therein provided, and do such other things as shall be provided by the laws of the state; and such fraternal-beneficial societies shall not in any way be subject to the insurance laws of the state, nor upder the control or supervision of the insurance department of the state, nor pay any corporation or other tax. * * *”
“See. 2825. Any association formed for benevolent purposes, including any purely charitable society, hospital, asylum, house of refuge, reformatory, and eleemosynary institution, fraternal-beneficial associations, or any association whose ^object is to promote temperance or other virtue conducive to the well-being' of the community, and, generally, any association formed to provide for some good in the order of benevolence, that is useful to the public, may become a body corporate and politic under this article. S: * * ”
Provisions similar to those above quoted, relative to the organization oí benevolent and religious associations, have been in force in the state of Missouri for more than 30 years last past. Gen. St. Mo. 1865, c. 70, p. 371; 1 Wag. St. Mo. 1872, art. 8, p. 339; Rev. St. Mo. 1879, art. 10, p. 178. But the phrase “fraternal-beneficial societies” is first found in.the Revised Statutes of Missouri for the year 1889, in the connection above shown; that is to say, in sections 2821, 2823, 2825, supra. The interpolation of these words into article 10, c. 42, in the revision of 1889, appears to have been the work of the revising committee, as we do not find any special enactment providing for the incorporation of “fraternal-beneficial societies.” It is noteworthy that while the phrase “fraternal-beneficial” is used in the connection above shown to designate a particular kind of societies or associations that may be incorporated, yet it was not thought necessary to otherwise define the descriptive phrase thus employed. We must accordingly assume that the words “fraternal-beneficial” were used in their ordinary sense,- — -to designate an association or society that is engaged in some work that is of a fraternal and beneficial character. According to this view, a fraternal-beneficial society, within the purview of the Missouri statute, would be one whose members have adopted the same, or a very similar, calling, avocation, or profession, or who are working in unison to accomplish some worthy object, and who for that reason have banded themselves together as an association or society to aid and assist one another, and to promote the common cause. The term “fraternal” can properly be applied to such an association, for the reason that the pursuit'of a common object, calling, or prpfession usually has a tendency to create a brotherly feeling among those wrho are thus
Such being the construction of the Missouri statute which we feel constrained to adopt, it becomes necessary to inquire whether the defendant company is in fact a fraternal-beneficial society, within the meaning of the statute, and whether it is entitled, on the ground of comity, to do the business in which it appears to be engaged, within the state of Missouri, without being subject to local insurance laws. This question must be considered in the light of the constitution and laws of the order, which form a part of the agreed case. Articles 1 and 2 of the constitution provide that the corporate body shall be known as “The Senate of the National Union,” and that the object of the order shall be:
“(1) To associate white male persons, of good moral character, who are socially acceptable, but, if for beneficial membership, of sound bodily health, and between .twenty and fifty-four years of age; (2) to give material aid to its members and their dependents; (3) to advance its members morally, socially, and intellectually; (4) to establish a fund for the relief of sick and distressed beneficial members; (5) to establish a benefit fund, from which, upon sufficient, proof of the death of a beneficiary member of the order who has complied with all its lawful requirements, a sum not exceeding*781 five thousand dollars shall ho paid to such member or members oC the family of the deceased, who are related to him by consanguinity or affinity, as may have been designated by the member in accordance with the laws of the order.”
The remaining 13 articles of the constitution, consisting of 24 pages of closely-printed matter, prescribe with great detail the manner in which the corporation shall be governed and its business be transacted; but we fail to find a single provision which discloses the means by which the moral, social, or intellectual condition of the members of the order was to be improved, or that provision is anywhere made for the doing of any work of a fraternal or benevolent character. The first section found in what are termed the “Laws of the Order” provides Cor the creation of a benefit fund, which is to be made up of assessments levied upon members of the order. Appended thereto is a table of rates, similar to those ordinarily published by insurance companies, which shows the amount to be paid by persons between the ages of 20 and 54 (who are the only persons eligible to beneficial membership) for benefits to be paid on the death of a member, in amounts ranging from $1,000 to $5,000. Law 5 of the order provides, in substance, that no council of the order shall be instituted for less than $100, which sum is to be paid to the senate; that all members of the order, to be entitled to benefits, must undergo a medical examination to be approved by the medical director of the order; that no council shall be instituted in the states of Louisiana, Mississippi, and Florida, nor in that part of Tennessee and Kentucky lying west of the Tennessee river, nor in that part of Arkansas south of the thirty-fourth degree of north latitude, nor, in the southeastern part of Georgia bordering on the Atlantic, nor in that portion of Texas lying south of the thirtieth degree of nortli latitude, nor in that portion of Alabama lying south of the thirty-second degree of north latitude, nor in the lowlands of South Carolina bordering on the Atlantic; that, whenever any pestilence or epidemic shall prevail or be threatened in any district where a council of the order is established,, the president of the order shall immediately, upon learning of the fact, suspend the initiation of new members during the continuance of such pestilence or epidemic; that no person shall be admitted as a beneficial member of the order who engages in blasting, mining, submarine occupations, manufacturing inflammable or explosive materials, or in navigation, or who acts as a conductor of railroad trains, or as a mail or express messenger on trains, or as a baggage master, yard master, switchman, brakeman, locomotive or si cam-boat engineer, fireman, saloon keeper, bar tender, policeman, or as a sawyer or an assistant sawyer in a circular or band sawmill, or as a laborer about an electric light plant, whose employment may be dangerous, and that no benefit shall be payable on account of tlie death of any member while engaged in a mob, riot, or insurrection, or while violating the laws of the land, or who dies by the hand of justice; and ¡hat no benefits shall he paid upon the death of a member who commits suicide within two years after becoming such, whether suicide be committed while the member was either