154 Mo. App. 70 | Mo. Ct. App. | 1910
The appellant here, defendant below, is a fraternal benevolent association, organized under the laws of this state, doing business upon the lodge system, with a ritualistic form of work and a representative form of government, and hereafter referred to as the Order. One John Zahm, on or about the 27th of October, 1899', received a certificate of beneficiary membership in the Order which provided, among other things, for the payment to the re
“This certificate. . . . shall continue in force only so long as the said member remains in good standing and all payments required hereon are paid in advance, without notice, to a duly authorized local treasurer of the order, or at the order’s home office, in St. Louis, Missouri. It is issued in consideration of the first payment, and the further payment of one assessment of one and 50|100 dollars, on or before the last week day of each and every month hereafter, in advance, without notice. This certificate is issued and accepted subject to the agreements, statements, exceptions and warranties contained in the member’s 'application herefor, to the conditions and statements on the back hereof, to the constitution and by-laws of the order, now in force or hereafter enacted, and to the order’s rates, and classification of risks, all of which are made a part of this contract, and all of*76 which statements and agreements in said application contained are, and shall he construed as warranties.
“The terms and conditions of this contract cannot he waived or altered by any deputy, organizer or solicitor; no modification or alteration of any of ■its provisions shall be valid unless endorsed hereon by the supreme secretary of the order. ’ ’
Among other conditions printed on the back of the certificate, is one to the effect that should the member fail to pay his assessment as therein required, he “shall stand suspended and cease to be entitled to any benefits, and the -certificate shall, without notice, immediately become null and void and of no effect, and all payments made to the order shall be forfeited ; ’ ’ provided, that the member may, within thirty days from the suspension, if in good health and free from injury on the date of reinstatement, that is to say, the date the health certificate is approved by the supreme secretary, revive the certificate by filing with the supreme secretary a health certificate subject to his appi'oval, and on the payment to him of the delinquent assessment together with a fine of twenty-five cents, “and in further consideration of such reinstatement said member is to waive all right and claim to any benefit or indemnity for any disability occurring or existing while he has lapsed (i. e., this order shall not he liable for, or the member or his beneficiary or beneficiaries shall not be entitled to benefits or indemnity for any cause arising or existing during such delinquency) or if occurring on the day of reinstatement; and in case of such reinstatement it is agreed that the benefits shall accrue solely on the same terms and conditions as though a new application had been made and a new certificate issued. It is expressly agreed that, after a lapse of this certificate by reason of failure to pay assessments when due, any payment which may be made prior to the approval of the.health
John Zahm, the member, failing to pay the assessment due in April, 1906, by the 15th day of that month, was notified by the defendant order about the 17th of that month, that his membership had lapsed and an application for a reinstatement was transmitted to him at Jacksonville, Flordia, where he resided. He appears to have signed this and to have transmitted it, together with $1.50, the assessment, and twenty-five cents, the fine, direct to the principal office of the order at St. Louis, where it was received the 23d of April, 1906, and according to the testimony of the President of the'Order, this money was “held in trust” until the necessary health certificate was received, which was on May 4, 1906, on which day the order applied the amount remitted as a credit to his May dues. About the 15th of May, Zahm appears to have paid the May assessment which, however, was credited on the books of the order to the June assessment, thus apparently leaving no credit on the books of the company for the April, 1906, assessment. Zahm died on the 11th of May, 1907, apparently having, after May, 1906, paid all assessments down to the time of his death. Proof of death appears to have been duly furnished by the widow, who demanded payment of seven hundred dollars, claiming that the death had occurred moré than seven years after the date of the beneficiary certificate.
On the part of defendant, it was claimed, by the answer and on the trial, that under the provisions of the contract it was only in force and effect from the date of reinstatement and that between that date and
“Sec. 105. All payments of assessments on benefit certificates shall-be payable in advance, without notice, on or before the last week day of. each month, and shall be remitted by the treasurer to the supreme secretary on or before the tenth day of the following month. Failure to remit within said time shall, ipso facto, cause such council and members to stand suspended. ’ ’ Section 108 is also relied on and may as well be inserted here. It is as follows:
“Sec. 108. One regular assessment shall be paid by each beneficiary member each month, payable, without notice, in advance, on or before the last week day of each month, to the home office of the order or to the duly authorized local treasurer. The order shall have the authority to levy and collect such assessments, in addition to the regular monthly assessments, as may be necessary to provide fpr the payment of accrued benefits and expenses, notice of which shall be sent to each member by mail fifteen days before the same shall become payable.”
The “new matter” in the reply was demurred to and the demurrer overruled.
The trial was before the court, a jury having been waived. As stated by counsel for the respondent, the only contested question in the case was whether Zahm’s certificate was continuously in force and effect from the time it was delivered to him until his death, as provided in the certificate; if so, there should be judgment for seven hundred dollars, but if hot, then the judgment should be reversed and one entered or di
After the conclusion of the testimony, the court gave a declaration asked by plaintiff and five declarations of law asked by the defendant. The respective parties excepted to the giving of these declarations. The court refused nine declarations of law asked by the defendant and exception was duly saved to the refusal. After taking the cause under advisement, the court found for plaintiff and entered up' judgment for seven hundred dollars and interest to date, of judgment. Plaintiff duly filed a motion for new trial, excepted to its being overruled and has prosecuted its appeal to this court.
The learned counsel for the appellant makes seven assignments of error: First, that the verdict and judgment are against the evidence, against the weight of the evidence and against the law under the evidence. Second, that the court erred in excluding the stipulation signed by the attorney referred to in the statement. Third, that the court erred in its declaration of law given at the instance of plaintiff. Fourth, that it erred in refusing the declarations of law asked by appellant. Fifth, that it erred in the declarations of law given of its own motion. Sixth, that it erred
The second assignment of error, in excluding the stipulation of the attorney, cannot be sustained. The attorney referred to does not appear to have been an attorney of record in the cause at any time.
The third assignment of error, that the court erred ■in its declarations of law given at the instance of plaintiff, might be disposed of by saying that as only one declaration of law appears to have been given at the instance of plaintiff and no objection appears to have been made to it, it is not subject to review. [Sheets v. Ins. Co., 226 Mo. 613, 126 S. W. 413.] We are compelled to disregard this assignment for the very sufficient reason that the declarations given, as we hold, fairly set out the facts, which under plaintiff’s view of the case, if proven, entitled her to a finding. It declares as a matter of law, that if defendant had, prior to the month of April, 1906, been in the habit of receiving payments of monthly assessments from John Zahm during the months for which they were made, without requiring him to be reinstated in the order, it thereby waived the requirement that Zahm pay the assessments on or before the last week day of the month preceding the month for which they were made, and that defendant could not, without first giving reasonable notice to him of its intention to change its habit of so receiving payments of assessments from him, require Zahm to make such payments other than in accordance with such habit of defendant in receiving them from Zahm, and the attempted suspension of Zahm by defendant from its order was void, and the attempted suspension and reinstatement did not prevent the benefit certificate sued on from
As to the fourth assignment of error in refusing the declarations of law asked by the appellant, it is to be remembered that the case was tried by the court without a jury, and the same nicety in declarations of law is not required as in instructions to a jury. All the office of declarations of law by the court, a jury being waived, is to inform the appellate court as to the theory of law upon which the case was tried and thus to determine whether that theory was correct. We think that the declarations of law which the court gave at the instance of each party show that he thoroughly understood and passed upon the theory contended for by each and made no error in Ms application of the law to the facts.
The fifth assignment of error in declarations given by the court at its own motion, must be eliminated from consideration as the abstract of the record furnished by the appellant fails to show any declarations of law given by the court at its own motion.
The most strenuous contention as to the error in refusing declarations rests on the refusal of the court to give the declaration numbered 16, asked by defendant, which was to the effect that if the court found
The sixth assignment of error, that the court admitted “irrelevant” testimony on the part of respondent, is entirely unavailable in an action where the trial is before the court. Furthermore, it is too general an assignment to enable us to determine at what particular error it is aimed. Examining the argument of counsel on this proposition, it seems to be
The seventh assignment is that the court erred in overruling appellant’s demurrer to the reply. The reply was first, a general denial and then matter in avoidance of the claimed forfeiture. The demurrer was that the reply “states no facts constituting a defense to the new matter in defendant’s answer.” As that reply, among other new matter, set up a distinct allegation that Zahm was never in default in payment of his dues nor in other than good standing in the order, and set up matters of estoppel, it is difficult to see how a general demurrer could have been sustained to it.
Turning to the first assignment of error, that the verdict and judgment are against the evidence, against the weight of the evidence and against the law under the evidence, the facts connected with the whole transaction were before the court, and the determination of the weight of the evidence and the credibility of the witnesses and the effect to be given to the evidence on the facts, was exclusively for the trial judge, with which we cannot interfere. As we have stated, the declarations of law given by the court satisfies us that he applied correct principles of law in the determination of the case on the theory upon which counsel tried it, and we cannot sustain this assignment. The learned counsel for the appellant in their argument submitted, very strenuously contend that there is a conflict between the instructions given by the court and those re
Learned counsel for respondent ask an assessment of ten per cent damages as for a vexatious appeal. We decline to award them, as notwithstanding the fact that we are obliged to overrule all the contentions that counsel make for a reversal, it is very apparent that the contentions are made in absolute good faith and hacked up by a very elaborate array of authorities, the only trouble with which is that we do not think they are applicable to or cover the points suggested. That does not go to the good faith of the appeal. We have endeavored to determine the appeal on the theory upon which the case was tried in the circuit court and accepted hy that court. We are not to he understood as deciding that the construction placed upon the certificate hy all parties,is correct. While these parties are concluded by it in this case, we express no opinion whatever as to whether that construction is correct.
The judgment of the circuit court is affirmed.