189 Mo. App. 662 | Mo. Ct. App. | 1915
This is a suit in equity upon a certificate of insurance issued by the' defendant, a mutual benefit association, for the reformation of the certificate arid praying for judgment thereon for the amount named therein, to-wit, $1000. In the certificate plaintiff was designated as a “dependent” of the insured. It is averred, in effect, that this designation was erroneously made, through mutual mistake of the.parties ; that plaintiff and the insured, however, were members of the same family and plaintiff therefore entitled to have the certificate reformed and made to designate her as one of the class of persons entitled to receive benefits under the constitution and by-laws of defendant order which confined the beneficiaries to “the families, heirs, blood relatives, affianced husband or wife, or the persons dependent upon the member.” The decree below was in plaintiff’s favor on the issues joined, and judgment was rendered for her for the amount named in the certificate, with interest, and the defendant appealed.
One Thomas Ward was a member of defendant order, and prior to December, 1908, held a benefit certificate issued by defendant, payable to his wife. In November, 1908, while he was living with his wife at or near the corner of Fifteenth street and Chouteau avenue in the city of St. Louis, the latter died, and during the following month Ward was taken into the home of plaintiff, Mrs. Peterson, who lived with her husband, •at 1102 Rutger street, in said city. It appears that
Plaintiff apparently lived in a- comfortable house. Her husband was in business, and she conducted an artist’s studio, of some sort, at the house in which they lived. She testified that Ward came into her home at her invitation. She said: “I had known him so long as a brother, and I says, ‘Now, Tom, you are here all by yourself, ... I want you to come over to my house to live;’ and he thanked me, of course, and said he would be glad to; and he came over there. ’ ’
Ward, having sold, for a small sum, such household goods as he possessed, moved his trunk and personal effects to plaintiff’s home, and there continued to live as a member of the household for a period of nearly two years. The evidence is that during this time he worked only at certain intervals, for a few days at a time, paid no board, and none was expected of him. As to this plaintiff, in part, testified as follows, viz.: The Court: “What was the understanding between you and Mr. Ward in reference to defraying the household expenses there ? ” A. “ There wasn’t anything at all; we had no talk about that at all; I just simply took him in.” Q. “He was your guest?” A. “No, he was just like a brother would be; like a member of the family.” Q. “I mean, did he defray any household expenses?” A. “No, sir.” Mr. Allison: “You didn’t charge him any board, either?” A. “No, sir; I gave
Plaintiff testified that some time after coming to her home, Ward, in going through his trunk,- came across the certificate formerly issued by defendant order, payable to his wife, and expressed the desire that the beneficiary therein be changed to plaintiff; that thereupon plaintiff telephoned one Johnson, “financier” of the local lodge, who came to her house and to whom Ward, in her presence, explained the situation; that Johnson stated that it would be necessary to designate plaintiff as a “dependent,” and though plaintiff explained that she was not dependent upon Ward, Johnson said that it would not matter and that it was proper to so designate plaintiff in the certificate. There is some little conflict in the testimony as to this matter, but not such as need be here dwelt upon. Shortly thereafter a new certificate was issued accordingly; and plaintiff paid all of the assessments payable thereon until Ward’s death.
Ward both slept at plaintiff’s home and ate his meals there until on or about October 7,1910. It seems that he then procured employment (as he frequently had theretofore, but which he had never continued in but for a few days at a time) in-a factory, and rented a room near the same, for convenience in getting to his work early. It is said that this was “just to last until he seen how he was going to like his position — if he was going to like it at all.” He did not move his trunk or other personal effects from plaintiff’s home, and continued to eat his evening meals there. This arrangement continued for but a brief time, for within
Though other questions are discussed in the briefs, it will only be necessary to determine whether plaintiff came within the class of persons entitled to receive benefits under the laws of the defendant order. If she fell within that class, it matters not that she was improperly designated in the certificate as a “dependent.” We are of the opinion that facts of the case were such as to warrant the finding that she and the insured were members of the same family after the latter came into and became a part of the domestic circle of which she was a member, and that this family relation continued until the death of the insured.
The word “family” is one of more or less flexibility, susceptible of different meanings according to the connection in which it is used. It may be of narrow or broad meaning, as the intention of the parties using it, or of the law, may be made to appear. It is said that ‘ ‘ in its ordinary and primary sense the term signifies the collective body of persons living in one house, or under one head or manager, or one domestic government; ’ ’ and that unless the context manifests a different intention the word is usually construed in this primary sense. [See 19 Cyc., pp. 450-452.]
Our courts have defined the term to mean, in its ordinary use, “a collective body of persons who live in one home, under one head or management. ’ ’ [Birch v. Birch, 112 Mo. App. 1. c. 163, 165, 86 S. W. 1106; Ridenour-Baker Grocery Co. v. Monroe, 142 Mo. 165, 43 S. W. 633; Jarboe v. Jarboe, 106 Mo. App. 1. c. 459, 79 S. W. 1162; Hyde v. Honiter, 175 Mo. App. 583, 158 S. W. 83.]
The word has been the subject of much judicial discussion, particularly in cases involving homestead rights, the construction of wills, and cases such as the one before us. [See Bacon’s Benefit So
In Hofman v. Grand Lodge, 73 Mo. App. 47, in a case of this character, this court, in an opinion by Bland, P. J., said: “The respondent sustained that relation to the deceased which brings her clearly within the class of persons for whose benefit the order was instituted, ‘members and their families.’ . . .We are not of the opinion that the words, ‘or their families’ as used in section 47, supra, of the constitution of the order, should be construed to embrace all kindred of the same degree, but that the family therein intended to be benefited, where one exists, is the family as understood in its usual and ordinary sense, that is to such persons as habitually reside under one roof and form one domestic circle, or to such as are dependent upon each other for support, or among whom there is a legal or equitable obligation to furnish support.” (Italics ours.)
In Grand Lodge v. McKinstry, 67 Mo. App. 82, it was held that a child taken by the assured into his household and reared and educated by him, though not legally adopted, was a member of his family within the meaning of the term as here used. It was said
We are of the opinion that the relations existing between Ward and plaintiff for approximately two years, were such as to constitute them members of the same family, within the meaning of the authorities, supra. They were members of one family circle; and their relations were “of a permanent domestic character, not that of those abiding temporarily together as strangers.” [See Dunkin v. Frank, 8 Mo. App. 1. c. 289.] There is nothing in the language used in the constitution of the order to imply that the term “families” is therein used in a narrow sense, and we are not inclined to so construe it where to do so would work an injustice. Nor can' it be taken to mean that a beneficiary must necessarily be one dependent to some extent upon the member for support, as was held in Benevolent Legion v. McGinness, 59 Ohio St. 531. And the facts here are not such as were present in Supreme Lodge, etc. v. Nairn, 60 Mich. 44, or in Supreme Commandery v. Donaghey, 75 New Hampshire, 197, upon which appellant places reliance; for in.the former it was sought to apply the fund to the payment of the assured’s debts, owing to the designated beneficiary and others, and in the latter it was found that the assured lived in the family in question as a boarder.
It is contended that the aforesaid language implies that the beneficiary must be a member of a family of which the assured is the head; but such has not been the construction placed upon a like use of the word “families” (see Ferbrache v. Grand Lodge, 81 Mo. App. 268), and we see no merit in this contention. •
It is also argued that since the contract of insurance is testamentary in character and speaks from the death of the assured, plaintiff cannot here recover; for if any family relation was created it ceased to exist on October 7, 1910’, when Ward began to sleep out of' plaintiff’s home. But from the facts touching this matter, referred to above, it may be found that the family relation did not cease prior to Ward’s death. And the finding of the chancellor below should not be disturbed on this ground. [See Grand Lodge v. McKinstry, supra, 1. c. 90.]
Under the facts of the case it would seem that the defendant is now estopped to assert, as a defense, that the beneficiary named in the certificate was not within the enumerated class of persons entitled to receive benefits (see Gibbs v. Knights of Pythias, 173 Mo. App. 1. c. 47, 156 S. W. 11); however this might be as between interpleaders for the fund. But because of the theory upon which the case proceeds, and' our views thereupon as above indicated, it is unnecessary to dwell upon this phase of the matter.