128 Mo. App. 541 | Mo. Ct. App. | 1907
The Western Commercial Travelers’ Association is an insurance corporation. Section 1, article 2, of its charter is as follows:
“The objects of this association are: (1) to obtain as its active and honorary members a large number of white male persons, (a) of good moral character, (b) of good health, (c) who are not under twenty-one nor over forty-five years of age, (d) who are traveling salesmen, (e) salesmen (or clerks in wholesale or manufacturing houses) or (f) buyers or salesmen for proprietors, copartners or corporations engaged in a legitimate mercantile manufacturing or commercial business, and who are proprietors, copartners, officers, directors or stockholders of corporations engaged in such business; (2) adopt, maintain and execute such plans as shall tend to the mutual benefit and protection of its members; (3) levy and collect assessments from its active members for such sums as may be necessary to provide a death loss fund for the sole purpose of the relief and aid of families, widows and orphans and other dependents of its deceased members, and (4) levy and collect from its members such sums as may be provided in its constitution and by-laws for the payment of its necessary expenses and the promotion of its objects.”
On May 5. 1894. John H. Tennent, Jr., became e member of the association and it issued to him a mem
The contention of Louisa H. Tennent is that the Association is a fraternal beneficiary society and that she, being a blood relative of the deceased member, is competent to take the fund as beneficiary, under the provisions of section 1408, Revised Statutes 1899. She also contends that she is entitled to the fund by reason of the fact that she was a member of the family of the deceased member and a dependent upon him. The other
In Westerman v. Supreme Lodge K. of P., 196 Mo. l. c. 701, the court said: “It is only essential to constitute the defendant a fraternal beneficiary association that it be organized for the benefit of its members, and not for gain or profit. It must have a representative form of government and ritulistic form of work.” [See also Baltzell v. Modern Woodmen, 98 Mo. App. 153.]
The association was incorporated July 15, 1888, under the then laws of this State, relating to benevolent associations and has not since amended its charter, or otherwise taken advantage of section 1409, Revised Statutes 1899, to bring itself under the Act of 1897; nor has it made reports to the State superintendent of insurance, under the provisions of section 1411, Revised Statutes 1899, nor do we think it is brought under the provisions of said act by the amendment of 1901, of section 1423, Revised Statutes 1899, which originally read as follows:
“This act shall not apply to or affect grand or subordinate lodges of Masons, Odd Fellows dr similar or*547 ders paying only sick, disability or funeral benefits, or any association not -working on the lodge system which limits its certificate holders or membership to a particular class, or to the employees of a particular town or city, designated firm, business house or corporation.”
The amendment of 1901 added the following to the above section:
“Provided that associations of commercial travelers and those employing commercial travelers incorporated as fraternal benefit associations or societies shall in all respects be subject to the provisions of this act.”
The purpose of the amendment was not to legislate this class of associations, who have no lodge system, with ritualistic form of work and representative form of government, bodily into fraternal beneficiary associations bnt was to take them ont of the class of fraternal benefit associations whose membership is composed of persons following a particular avocation and segregate them from that class of benefit associations whose membership is confined to members of a designated secret order, so as to enable benefit associations composed of commercial travelers to avail themselves of the benefits of the act, by providing for a lodge system, with ritualistic form of work and a representative form of government, and by making annual reports to the state superintendent of the insurance department. The evidence is that the association has no lodge system nor a representative form of government and has never made a report to the state superintendent of insurance, hence it cannot be classed as a fraternal beneficiary association, under the Act of 1897. But the failure of the association to comply with the Laws of 1897, does not ipso facto forfeit its charter nor- convert it into an old line insurance company. [Kern v. Legion of Honor, 167 Mo. 471, 67 S. W. 252; Baltzell v. Modern Woodmen, supra.] It is a mutual benefit as sociation, doing business on the assessment plan and
“That said Christina May Tennent and John H. Tennent, Jr., lived together as man and wife continuously, and in the same dwelling house until February, 1906. That some time in February, 1906, John H. Tennent, Jr., left his then residence in the city (if St. Louis, on a business trip, intending to return to his said home. That at said time and up to the date of his death his occupation was that of a traveling salesman. That from and after the time of leaving his home until the day of his death he contributed nothing to the support of his Avife and child, and at the time of leaving, left them in destitute circumstances. That his Avife and child continued to live in the house in Avhich they bad lived Avith him from the date of his departure in February, 1906, until some time in March, 1906, at Avliich time she removed to the residence, in the city of St. Louis, of her brother, and from that day until after the death of her husband she continued to reside in the*549 city of St. Louis, dependent upon’ the bounty of her said brother. That said John H. Tennent, Jr., never at any time called at the house at which he had lived with his wife and child; that he never after the date of his leaving in February, sa.w his wife or was seen by her.
“That the said Christina May Tennent some time in March expressed her unwillingness to further live with the said John H. Tennent, Jr., under the then existing conditions. That at that time the said Christina May Tennent was and she is nowq without means of support except as she enjoys the bounty of her relatives —her brother. That between the date of his leaving his home in February and the date of his death John H. Tennent, Jr., requested his wife by letter to live with him in Texas, but that he did not at any time send her any money or provide the means of transportation. That during the months of March, April and May said John I-T. Tennent have or sent to his said mother, Louisa H. Tennent, sums of money aggregating over two hundred dollars ($200) for her support. That the husband of Louisa H. Tennent is living, of the age of sixty-seven (67) years, and is able-bodied, his age considered, and that between February, 1906, and the date of the death of John H. Tennent, Jr., the said husband, of Louisa H. Tennent was without employment or occupation and without means. That during the period between the time when John H. Tennent, Jr., left his wife and child, and the date of his death the said Louisa H. Tennent, his mother, to wliom he made the gift amounting to two hundred dollars ($200) was possessed of at least one thousand dollars ($1000) in her own right. That during said period said Louisa H. Tennent wras living with her husband, maintaining the residence and had living in her house one boarder who was paying monthly sum in compensation for her board and lodging.
“That the said John H. Tennent, had during the*550 period between the date of his leaving his wife and child, and the date of his death, no fixed place of abode. That he visited his said mother at her residence on Washington avenue in the city of St. Louis, during the month of March, 1906, but did not remain over night. That again in the early part of May, 1906, he wont home to his mother and father and remained there for about five days. That during that visit he purchased meat, vegetables and groceries necessary for the household of his mother and father. That again on May 27, 1906, he went to the house of his mother and father in Webster Groves, Missouri, and that he died on May 28, 1906. . . .
Section 1, of article 8, of the constitution of said association provides:
“ 'Should all of the beneficiaries designated in any certificate issued by it die, the benefit shall be paid to the heirs of the deceased member in accordance with the laws of the State of Missouri. Should a member die without leaving designated beneficiaries or heirs at law who apply for the benefits within one year from the date of his death, then his benefit shall revert to and become a part of the death loss fund of the association! ”
Upon these facts, the learned trial judge made the following findings of law:
"The court finds that as a matter of law the mother of the deceased, John I-I. Tennent, Jr., was not at any time mentioned in the evidence, a member of iiis family within the meaning of that word as used in the charter, constitution and by-laws of the Western Commercial Travelers’ Association or the law governing this case. That the said Louisa H. Tennent was not at any time mentioned in the evidence dependent upon said John H. Tennent, Jr. That the said Louisa H. Tennent was not at any time a dependent within the meaning of the provisions of the charter and constitution of*551 the Western Commercial Travelers* Association or the laws governing this cause. . . .
“That the designation of Louisa H. Tennent as a beneficiary of John H. Tennent, Jr., was void. That Louisa H. Tennent does not fall within the designation of the words ‘family’ or ‘member of deceased’s family’ as used in the laws of this State and the charter of the Western Commercial Travelers’ Association.
“That the certificate issued to Christina May Tennent having been surrendered, and said John H. Tennent, Jr., having attempted to designate some other person, the court declares as a matter of law that he died- without having designated any person qualified under the provisions of the charter, constitution and by-laws of the Western Commercial Travelers’ Association, and that therefore the fund now in court, less the costs and expenses to be properly deducted therefrom by orders of this court, should be paid in equal shares, one-half to Christina May Tennent, one-half to John B. Denvir, Jr., as guardian ad litem, for said John H. Tennent, a minor.”
The facts as found are in accord with the undisputed evidence. It should be added that the uncontradicted evidence shows that John H. Tennent, Sr., the husband of Louisa H. Tennent, and the father of John H. Tennent, Jr., at all times mentioned in the evidence was living with his Avife, and had a home where they dwelt together as one family, and there is nothing in the evidence to show that the husband was not in fact, as well as in laAV, the head of the family. It appears from the evidence that John H. Tennent, Sr., failed in business about the beginning of the year 1906, and was stripped of all his means and Avas out of employment until some time in September, 1906; but the evidence nowhere shoAvs or tends to show that he abandoned all effort to support his family or that he shifted the burden of their support upon the shoulders of his
In Nye v. Grand Lodge, etc., 9 Ind. App. l. c. 150, the court said: “Those who may be dependent upon another for support and maintenance may not be of the family or related by blood to the member. It is a question of fact, and not of law, to determine who are members of a family, or of blood relationship, or dependents. [American Legion of Honor v. Perry, 140 Mass. 590.]”
In Alexander v. Parker, 144 Ill. 355, it was. ruled: “A dependent, as the term is used in reference to these benefit societies, is one Avho is sustained by another.
The State of Florida has a statute granting the right of action for death by wrongful act or negligence, and confers the right of action upon designated persons. Third in the list are persons who are dependent for support upon the person killed. In Duval v. Hunt, 34 Fla. 85, the court held: “ When the suit is brought,* in such cases, by a person who bases his right to recover npon the fact that he is a dependent upon the deceased for support, then he must show, regardless of any ties of relationship, or strict legal right to such support, that he or she was, either from the disability of age, or non-age, physical or mental incapacity, coupled with the lack of property means, dependent in fact upon the deceased for a support. When adults claim such dependence, there must be, because of some of the disabilities above mentioned, an actual inability to support themselves and an actual dependence upon some one for support, coupled with a reasonable expectation of support, or with some reasonable claim to support from the deceased.”'
Bacon in his excellent work on Benefit Societies and Life Insurance, after reviewing the decided cases, says: “From the definition and cases cited it seems that whether or not a person is included among the dependents of a member of a benefit society is a question of fact, and that each case must be decided on its own merits.” [1 Bacon on Benefit Societies & Life Insurance, sec. 261, p. 628.]
The contributions or donations, made by John H. Tennent, Jr., to his mother and her family, began with thirty dollars in the latter part of March, 1906, followed
Louisa H. Tennent was asked to repeat conversations she had with her son before his death, in regard to her future support. On objections she wa.s not permitted to repeat these conversations. This ruling is assigned as error. If she Avas a competent Avitness to repeat these conversations (Avliich. we do not concede) her counsel neglected to get in the record what she
No reversible error appearing, the judgment is affirmed.