158 Mo. App. 226 | Mo. Ct. App. | 1911
This is a suit on a certificate of life insurance. Plaintiff recovered and defendant prosecutes the appeal.
Defendant is a benevolent society, incorporated in a foreign country, but authorized to do the business of life, insurance in this state. Plaintiff is curatrix of the estate of three minor children, who are the beneficiaries in a certificate of insurance for one thousand dollars which their mother, Mrs. Rose A. Wilson, held in defendant order at the time of her death. It is conceded throughout the case that all of the assessments and dues were paid by the insured during her lifetime and that the certificate was in full force and effect when she died, but its payment was sought to be evaded on other grounds, which the jury rejected.
The principal argument put forward here for a, reversal of the judgment goes to the effect that the suit may not be maintained for the reason plaintiff failed' to exhaust the remedies within the order by prosecuting several appeals through its tribunals before instituting suit on the certificate. It appears the claim was rejected by defendant’s Supreme Chief Ranger, which officer, according to the constitution and by-laws, is the ex officio president and general manager of the order. He was a proper person to
The circuit court- declared peremptorily as a matter of law that these by-laws constituted no defense to the action, and it is said here this was error, as they are entirely reasonable and impose no undue burden. We are not so persuaded, for it appears that when the two by-laws material to the controversy are read together they are most unreasonable, indeed, Bylaw No. 196 confers the right of appeal on either party to the controversy, as will appear by reference thereto:
“in whom the right of appeal is vested.
“196. (1) The right of appeal shall be vested in every member of the order, and in case of the death or disability of a member the right of appeal shall be vested in his beneficiary or legal or personal lepre-*230 sentative or other person deriving legal rights from him or them or any of them.
“ (2) The right of appeal shall also he vested in every High Court, Subordinate Court, Companion Court, Juvenile Court and Encampment of Royal Foresters’ and an appeal shall lie against the action or decision of any officer, or of -any High Court, Court or Encampment, except that of the Executive Council whose action or decision shall be final and conclusive in all cases; provided that if a party feel aggrieved by a decision of the Executive Council, such party may appeal to the Supreme Court, the action ór decision of which shall be final and conclusive.”
The order seems to be subdivided into numerous courts, mentioned in the by-laws as High Courts, Subordinate Courts, Companion Courts, etc., and any of these courts may appeal on behalf of the order from the decision of any officer or any High Court or Encampment, except that of the Executive Council, whose decisions, it says, shall be final and conclusive in all cases. If the by-law stopped here, the provisions would be much more reasonable than they are; but it is to be noted that the same by-law provides further that if a party feel aggrieved by the decision of the Executive Council, such party may appeal to the Supreme Court, the action or decision of which shall be conclusive. It is entirely clear that this by-law confers a right of appeal upon plaintiff from the executive Council to the Supreme Court of the order, though it may be permissive only. And probably the word “party” therein would confer the same right of appeal upon defendant order. It is unnecessary, however, to determine this matter. It is enough for the purpose of the case to say that it confers a permissive right of appeal on plaintiff to the Supreme Court of the order, for if it does, then it affords a remedy which section 201 enjoins shall be exhausted before any suit may be main
“no ONE HAS RIGHT OF CIVIL ACTION UNTIL APPEALS ARE EXHAUSTED.
“(201). No member, of the order nor his beneficiary, nor his legal personal representatives, nor other person in any way interested in any of the benefits, nor any one deriving legal rights from him, or them, or any of them shall be entitled to bring any civil action or other legal proceeding against the Supreme Court, or against any other court or branch of the Supreme Court until he shall have exhausted all of the-remedies provided in the constitutions and laws, by appeals and otherwise; and ally member of the order or his beneficiary or his legal personal representative, or other person in any way interested in any of his benefits, or deriving legal rights from, through, by or under, him or them, or any of them, who shall bring any civil action or other legal proceedings against the Supreme Court or against any court or any other branch of the Supreme Court before he shall have exhausted all remedies within the order by appeals and ■otherwise, shall ipso facto forfeit all benefits and all rights, claims and demands therein and thereto to which he or they or any of them might otherwise have been entitled, and if he be a member of the order he shall ipso facto stand suspended.from the order.”
This section in plain terms provides .that a beneficiary may not maintain a suit on the certificate against the order “until he shall have exhausted all of the remedies provided in the constitutions and laws by appeals and otherwise.” When the two by-laws are thus read together, they operate an unreasonable restraint, for it appears the Supreme Court of the order to which such appeal shall be directed meets, according to the constitution, only once in three or four years, as the court itself may determine, and this
Because by-law 196 merely authorizes an appeal to the Supreme Court of the order after the Executive Council has acted and does not require such in terms, it is suggested that it operates no restraint on the beneficiary, as the suit might be prosecuted notwithstanding. Such, no doubt, is a sound interpretation and if it stood alone the argument would be persuasive to the end of convincing the court that it is a reasonable provision. [Supreme Lodge v. Dey, 58 Kan. 283, 49 Pac. Rep. 74; Bacon’s Benefit Societies, sec. 450a.] But no one can doubt that this by-law intends to and does afford the beneficiary a remedy within the order, though it be permissive only. This being true, its reasonable or unreasonable scope must be determined by reference to the provisions of by-law 201, in pari materia therewith, which prescribes that no suit shall be maintained by the beneficiary until all of the remedies by appeal and otherwise are exhausted. Had plaintiff appealed from the Chief Ranger to the Executive Council and after that tribunal’s rejection of the claim instituted suit on the certificate, no doubt the defense interposed in bar would be that all of the remedies within the order were not exhausted, for the reason an appeal would lie to the Supreme Court, which meets in Toronto, Canada every three or four years. Though
The Court of Appeals of New York, in a suit against this same order, gave judgment to the same effect and said substantially that the order was without power to deprive a party of a right to resort to the civil courts for redress or to compel him to seek remedi.es by appeal to the various judicatories erected within the order when such possible delays and expense might be entailed. The court said: ‘ ‘ The manner in which these courts are organized, the expense and delay involved in procuring a hearing in another and very remote jurisdiction, are obstacles that amounted almost to a denial of justice.” [Brown v. Order of Foresters, 176 N. Y. 132.]
We have examined with care the other question put forward for a reversal of the judgment. It is entirely clear that on the proof contained in the record the matter involved was for the jury and the court properly declared the law on the quéstion in giving- and refusing instructions. The judgment should be affirmed. It is so ordered.
