Schwanekamp v. Modern Woodmen of America, 120 P. 806

Schwanekamp v. Modern Woodmen of America

120 P. 806 | Mont. | 1912

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

In 1902 Henry J. Sehwanekamp became a member of the Modern Woodmen of America, a fraternal beneficiary society authorized to do business in this state, and received a benefit certificate or policy of life insurance for $2,000, in which the plaintiff in this action was named as beneficiary) The contract of insurance is made up of the application of the insured, the by-laws, rules, and regulations of the association, and the benefit certificate. In June, 1908, Sehwanekamp died. The beneficiary made due proof of death, but the association refused to pay the *531benefit, and this action was commenced to enforce payment. The complaint is in the usual form employed in such cases. The answer of the association admits that Schwanekamp became a member, that the certificate was issued to him, that the plaintiff herein was named as beneficiary, and that it has refused to pay the claim. It then sets forth a description of the association, its aims and purposes, its methods of operation, a copy of the Schwanekamp application for membership, certain of its by-laws, and the benefit certificate issued in this instance. It then alleges that during his lifetime and while a member of the association Schwanekamp violated the terms of his contract with it by engaging in the liquor business as a bartender in the city of Butte, by reason whereof the benefit certificate became void. The cause was tried to the court without a jury. At the close of plaintiff’s case, the defendant moved for judgment. The motion was granted, judgment was rendered and entered, and plaintiff has appealed from the judgment, and from an order denying her a new trial.

1. The by-laws of the association provide that if a member shall engage in the manufacture or sale of spirituous, malt, or vinous liquors to be used as a beverage, in the capacity of proprietor, stockholder, agent, or servant, he shall ipso facto forfeit all rights as a member of the society, and his certificate shall thereby become null and void. It is then alleged that, in violation of the agreement, the insured, while a member of the association, did “engage in the sale of malt, spirituous, and vinous liquor to be used as a beverage in the capacity of proprietor, stockholder, agent, and servant; that is to say, that on [1] or about the said date the said Henry J. Schwanekamp engaged in the occupation of bartender in a saloon in the city of Butte, in the state of Montana.” This is a sufficient allegation, if true, to show a breach of the contract. We shall not stop to consider what definitions may be found for the terms “saloon” and “bartender.” It would be an impeachment of the intelligence of the average citizen of this state to say that he does not know and appreciate the true significance of those words. A “saloon,” as that term is used in the Codes of this *532state and as generally understood here, is a place where intoxicating liquor is sold as a beverage. This is the definition quite generally adopted by courts and text-writers. (7 Words and Phrases, 6310; State v. Donaldson, 12 S. D. 259, 81 N. W. 299; McDougall v. Giacomini, 13 Neb. 431, 14 N. W. 150; Mayor etc. of Leesburg v. Putnam, 103 Ga. 110, 68 Am. St. Rep. 80, 29 S. E. 602; Cardillo v. People, 26 Colo. 355, 58 Pac. 678; Ex parte Livingston, 20 Nev. 282, 21 Pac. 322; State v. Baker, 50 Or. 381, 126 Am. St. Rep. 751, 92 Pac. 1076, 13 L. R. A., n. s., 1040; Territory v. Robertson, 19 Okl. 149, 92 Pac. 144; Malkan v. Chicago, 217 Ill. 471, 75 N. E. 548, 2 L. R. A., n. s., 488.) And a bartender is one who works in a saloon serving the patrons with drinks and refreshments. (Century Dictionary; Standard Dictionary; Webster’s International Dictionary.)

2. But it is insisted by appellant that, if the affirmative allegations of the answer are sufficient to show a breach of the contract, it also discloses that the contract itself is void, under [2] section 5057 of the.Revised Codes. That section, so far as relied upon, reads as follows: “Any contract by which anyone is restrained from exercising a lawful profession, trade or business of any kind, * * * is to that extent void.” Authorities may be found which hold that a statute of this character never applies to a business which is subject to police supervision and control and which may be prohibited altogether. But, in any event, it refers only to a contract which by its terms restrains a party to it from exercising a lawful business, and the breach of which subjects the delinquent to liability.

The insured agreed as a condition precedent to having the contract of insurance executed that he would not engage in any of the prohibited undertakings, and, if he did, he would surrender all claims to benefits. He was free to terminate the contract without incurring any liability; and in engaging in the liquor business, which was prohibited by his contract, he merely chose between the benefits conferred by his membership and the profits arising from the prohibited business.

It is said that the liquor business is lawful in this state; but so is the business of handling dynamite, nitroglycerine, and other *533high explosives. In fact, there are many extrahazardous employments which are lawful; but, if the section of the statute here relied upon prevents a life insurance company from discriminating in the risks which it assumes) or forbids it prohibiting its members from engaging in any sort of employment which is not declared unlawful, then all such companies are confronted in this state with a rule of law essentially different from that recognized elsewhere. Section 5057 above is not a novel statute. It is but declaratory of the common law (Newell v. Meyendorff, 9 Mont. 254, 18 Am. St. Rep. 738, 23 Pac. 333, 8 L. R. A. 440), and is in force in every state in the Union, either as a statute or as a rule of common law, and we have not been able to find a single decided ease holding that a contract of this character is violative of such a provision; in fact, it is recognized everywhere that these associations may limit their membership. (29 Cyc. 28.)

And it is equally well settled that, if the by-laws, rules, and regulations so provide, the mere breach by the insured in engaging in a prohibited occupation forfeits his claim to benefits, [3] or, in other words, the provisions of forfeiture are self-executing. (Hogins v. Supreme Council, 76 Cal. 109, 9 Am. St. Rep. 173, 18 Pac. 125; Langnecker v. A. O. U. W., 111 Wis. 279, 87 Am. St. Rep. 860, 87 N. W. 293, 55 L. R. A. 185; Supreme Council v. Curd, 111 Ill. 284; Hexom v. Knights of Maccabees, 140 Iowa, 41, 117 N. W. 19; Pauley v. Modern Woodmen of America, 113 Mo. App. 473, 87 S. W. 990; Niblack on Benefit Societies and Accident Insurance, sec. 290; 29 Cyc. 181.) Our conclusion is that the statute quoted above does not have any application to a contract of this character.

3. The fact that the insured had violated his contract by engaging in a prohibited undertaking was disclosed upon the trial by [4] the proofs of death introduced as a part of plaintiff’s examination. These proofs furnished prima facie evidence of the facts stated and were to be treated by the trial court as admissions made on the part of the plaintiff. (Insurance Co. v. Newton, 22 Wall. 32, 22 L. Ed. 793; Modern Woodmen of America v. Von Wald, 6 Kan. App. 231, 49 Pac. 782.)

*5344. The motion interposed by the defendant amounted to a [5] submission of the case upon the evidence introduced by the plaintiff, and it is of little consequence by what name it was designated, or whether any grounds were specified. The court properly treated it as a submission of the entire case for decision upon the evidence then before it.

We have treated this ease from the standpoint of appellant as disclosed in the brief of her counsel,- and upon the assignments made and argued we do not find that any error was committed. The judgment and order are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Smith concur.