Brittenham v. Sovereign Camp Woodmen of the World

OPINION. FARRINGTON, J. The respondent attempts to escape the consequence of the certificate being avoided according to its terms on account of the assured violating the rules of the order by going into a prohibited occupation and continuing in the same for a period of two years prior to his death and failing to give the required written notice which he agreed to do and failing to pay the additional fifty cents per month required under the contract of a member engaged in such occupation after having given the written notice, first, on the ground that the certificate, having been issued more than five years and the regular monthly assess — 533 — ments of $1.25 (the amount due from the assured if not in a prohibited business) having all been paid, no contest could be made on the certificate because the assured’s death did not result from one of the causes enumerated in section 68 hereinbefore set forth; in other words, because the certificate was over five years of age, respondent contends that it is incontestable on any ground other than those shown in said section; second, on the ground that the letter of October 24, 1912, refusing to pay the benefit because of the failure to pay the August 1912 assessment, estopped defendant from making any other defense. In deciding this case we agree with respondent’s counsel that we must bear in mind that certificates of insurance in fraternal beneficiary associations are not exempt from the general rule that forfeitures are not favored in the law, and that contracts of insurance providing for forfeitures should be construed strictly against the insurer (see, Mathews v. Modern Woodmen, 236 Mo. 326, 344, 139 S. W. 151; McMahon v. Maccabees, 151 Mo. 522, 52 S. W. 384); and that where conditions and provisions in a certificate express a doubtful intent they are to be construed most strongly against those for whom they were introduced (see, Renn v. Supreme Lodge K. of P., 83 Mo. App. 442, 447; Mathews v. Modern Woodmen, supra; Walton v. Fraternal Aid Ass’n, 149 Mo. App. 493, 130 S. W. 1124); and that effect must be given, if possible, to all parts of the certificate, both printed and written (see, 16 Am. and Eng. Ency. Law, 863, 864; Mathews v. Modern Woodmen, supra; Clark v. M. W. A., 170 Mo. App. 210, 156 S. W. 72.). With these rules in mind we are still unable to see wherein section 68 relieved the assured of the effect of the positive by-law of the order making the certificate void when he entered into the prohibited occupation and agreed that it would become void unless he g*ave a written notice of such intention to the proper officers. — 534 — Nor can he be considered as in good standing from the viewpoint of payment of dues. It is uncontroverted that one of his age should pay $1.75 per month while engaged in the prohibited business. Yet plaintiff in her examination in chief asserts that she had always paid the assessments on this certificate and that $1.25 is all that she ever paid or that she knew had to be paid. As we view it, according to the terms of his-agreement, the certificate became void the first month he entered the saloon business, having failed to give the written notice required and to subsequently pay every month the extra fifty cents, and that the certificate by its terms remained void from that time until his death as he was never reinstated in the order as provided in its by-laws. His agreement to be bound by the by-laws, rules and regulations of the order is a binding part of his contract under our statutes relating to this character of insurance. [Session Acts 1911, p. 286, section 9.] The application, certificate, rules, by-laws and-constitution, when they are made a part of the contract, must be construed together, and a member must have been obedient to such conditions and terms as are set forth in order that his beneficiary may recover. [Loyd v. Modern Woodmen, 113 Mo. App. 19, 87 S. W. 530.] When a contract of insurance (of this character) provides that no member or officer of a local camp can waive any of the provisions of the contract, so far as the sovereign camp is concerned such provision will be upheld. [Session Acts, 1911, p. 292, section 22; Day v. Supreme Council, Woodmen Circle, 174 Mo. App. 260, 156 S. W. 721; Lavin v. Grand Lodge A. O. U. W., 104 Mo. App. 1, 78 S. W. 325; Lavin v. Grand Lodge A. O. U. W., 112 Mo. App. 1, 86 S. W. 600; Clair v. Royal Arcanum, 172 Mo. App. 709, 155 S. W. 892.] Subsection b of section 42 provides that the certificate of a member engaged in the business in which the assured had entered and remained for two years prior — 535 — to Ms death shall be void without the written notice to-the clerk and the payment of an additional fifty cents each month, and yet in this case it is beyond controversy that the assured was engaged in such prohibited occupation, that he did not give the written notice, and that he never paid or tendered the extra fifty cents per month in addition to Ms regular $1.25 assessment. When he violated tMs part of the contract it became null and void without any action on the part of the defendant order. [See, Easter v. Brotherhood of American Yeomen, 154 Mo. App. 456, 135 S. W. 964; Britt v. W. O. W., 153 Mo. App. 698, 134 S. W. 1073; Knode v. Modern Woodmen, 171 Mo. App. 377, 157 S. W. 818; Day v. Supreme Forest, Woodmen Circle, 174 Mo. App. 260, 156 S. W. 721.] The assured was-therefore never in good standing in the order from the time he failéd to comply with the rule above mentioned, and in order for his beneficiary to claim the-benefit, under section 68 the assured must have been in good standing at the time of his death. Section 68 of the by-laws providing that after five years had elapsed and the assured was in good standing the certificate would be incontestable except because of death arising from certain causes,' does not apply to contests for a failure to pay legal assessments due from the assured. Courts will enforce an agreement providing for a forfeiture .in case the assessments are not paid, regardless of whether the condition be considered as precedent or subsequent. [Thompson v. Fidelity Mut. L. Ins. Co. (Tenn.), 92 S. W. 1098, 6 L. R. A. (N. S.) 1039; Schmertz v. United States L. Ins. Co., 118 Fed. 250; Metropolitan L. Ins. Co. v. Walton, 25 Ohio C. C. 587.] If the argument of the respondent is sound as to section 68, there is no reason for any member of such an order ever paying any assessment after the certificate has been issued for a period of five years. It is-just as necessary that he pay the fifty cents additional each month in order that he keep is certificate alive — 536 — when he engages in the saloon business as that he pay the $1.25 per month when not so engaged, and yet the record discloses that the plaintiff herein paid all the assessments on the certificate and that all she ever paid was $1.25 per month. Respondent seeks to escape this situation by relying upon a remark of one of the attorneys for the defendant during the course of the trial when such attorney admitted that they had paid up to and including the July assessment. There was no denial that the regular assessments of $1.25 per month had been paid up to and including July, 1912. Nor is there any claim (at the trial or in this court) that the additional fifty cent charge per month was ever paid. The record cannot be contorted into a construction that the attorney for defendant admitted that this additional charge of fifty cents per month had ever been paid or tendered from the time the assured entered the saloon business to the date of his death. Nor did the attorney admit that the required notice had ever been given, which was also necessary in order to keep the certificate alive. The assured was not in good standing and his certificate had become void upon his failure to give the required notice and pay the fifty cents additional each month. [Clair v. Royal Arcanum, supra; Knode v. Modern Woodmen, supra.] Respondent relies upon the cases of Mathews v. Modern Woodmen, and Clark v. Modern Woodmen, both supra, for an affirmance of this judgment. By reading these cases it will be readily seen that they uphold and apply the same law that we are enforcing herein, and that in those cases the court escaped declaring a forfeiture of the certificate on the clause found in the contract. In the Clark case the court points out that the contract containing the following provision: “I further understand and agree that this society does not indemnify against death caused by occupations prohibited by its by-laws,” and in the Mathews case the — 537 — opinion shows that the application containing the following : “Do you understand and agree that this order does not indemnify against death from suicide or death resulting from different occupations prohibited to its members by its laws'?” and that the applicant’s answer was, “Yes.” There can be found no such provisions in the contract we are construing, and the cases referred to are authority for appellant’s rather than respondent’s contention. There is nothing in our case that would indicate that there would only be a forfeiture in case the assured’s death was caused by his entering into the prohibited occupation. Nor is there anything in the record to show that the sovereign clerk or any other officer of the sovereign camp knew, at the time the letter (of October 24, 1912) was written, that the assured had violated this rule of the order forbidding its members to engage as bartenders or distributors of intoxicating liquors, and in the absence of such knowledge, the order could not on any just reason be precluded from raising a valid defense simply because it had refused payment on some other ground which might or might not be a sufficient ground for such refusal. We realize that it is the duty of courts to find, if possible, some sufficient ground to avoid declaring a forfeiture, and a review of the decisions on insurance policies in this State will convince any one that they have not been remiss in this duty. Such forfeiture provisions should be strictly construed against the insurer, but a strict construction does not mean one that is unreasonable, unwarranted, unjust and oppressive. Some regard must be paid to the rights of the living as well as to those of the silent dead. It would be highly unjust to call upon the living members of this association who are abiding by its laws to pay a benefit on the life of a member who violated the plain, material provisions of his contract. — 538 — The question of the duty of the defendant to return the premiums paid during the period this, certificate was not in force is in no way involved in this action. The judgment is reversed. Robertson, P. J., and Sturgis, J., concur.