Gilmore v. Modern Brotherhood of America

FARRINGTON, J. — This is an action by the widow of David Gilmore on a beneficiary certificate for the snm of $1000 in which her husband was the assured and she was named the beneficiary. The certificate was issued on November 20, 1912, and was delivered by the secretary of the local lodge of the Modern Brotherhood of America at Cardwell, Mo., either on December 4th or1 December 14th, 1912, at which time the proper amount was paid by the assured to the secretary of the local lodge. David Gilmore died on January 5,1913, from the ravages of pneumonia. The Supreme Lodge declined to furnish blanks on which proof of his death could be made and instructed the secretary of the local lodge to return to the widow the two assessments which Gilmore had paid him; (one was paid on January 4th, the day before Gilmore died). She refused to accept them, and brought this suit. To defeat the action the Supreme Lodge alleged in its answer that deceased had never been initiated, adopted or admitted into the society as a member thereof, having first alleged that it is and was at all times mentioned in plaintiff’s petition a fraternal benefit society organized and incorporated under and by virtue of the laws of the State of Iowa, “that it is without capital stock, and was formed and organized and is carried on solely for the mutual benefit of its members and their beneficiaries, and not for profit. That it has a lodge system, with ritualistic form of work and representative form of government, and makes provision for the payment of benefits in event of the death or disability of its members. That as such fraternal benefit society it has, and had at all times mentioned in plaintiff’s petition, complied with all the laws of the State of Missouri, relating to such societies, and at said times was engaged in transacting the business of such society in said State of Missouri by authority of,- and in compliance with, the law of said State.” The — 450 — answer then proceeds to set forth provisions appearing in the application, the certificate and the by-laws of the society concerning the necessity of initiation to constitute an applicant a member. The reply was a general denial coupled with a plea that defendant by its acts and conduct had waived its right to rely on failure to initiate and a plea of estoppel. At the close of all the evidence the court directed a verdict for the society and plaintiff appealed. Appellant contends that respondent did not offer sufficient evidence to bring itself within the provisions of our law relating to fraternal beneficiary associations, citing Thompson v. Royal Neighbors, 154 Mo. App. 1. e. 121,133 S. W. 146. Since the decision in that case the law as to fraternal beneficiary associations has been changed. [Laws 1911, pp. 284 to 301.] Section 16 of the law as it now stands (Laws 1911, p. 290) provides: “A duly certified copy or duplicate of such license shall be prima-facie evidence that the licensee is a fraternal benefit society within the meaning of this act,” the “license” referred to being one obtained by such associations from the superintendent of the insurance department of the State. This is the first time that provision has come before the appellate courts of this State since its enactment. Respondent complied with that law and at the trial introduced in evidence a certified copy of its license to do business in Missouri as such society. There was no attempt to overcome this prima-facie showing; hence it was sufficient. However, respondent went further, and introduced in evidence a certified copy of its articles of incorporation showing that it was organized as “a fraternal beneficiary society for the sole benefit of its members and not for profit;” that it has a “lodge system, with ritualistic form of work and representative form of government;” that provision is made “for the payment of benefits in case of death;” and that “the fund from — 451 — which, the payment of such benefits shall be made, and the expense of said fraternity defrayed shall be derived from beneficiary calls, assessments and dues collected from its members.” [See Westerman v. Supreme Lodge K. of P., 196 Mo. l. c. 701, 702, 94 S. W. 470.] Respondent also introduced in evidence the laws of Iowa under which it was organized. Appellant contends that the judgment should be reversed and the cause remanded with directions- to enter judgment for her because the court erred in admitting in evidence a copy of the purported by-laws of the society without proper authentication. It is unnecessary to discuss this question. Gilmore, in his application which became a part of his certificate, agreed as follows: “I waive for myself and beneficiary any all rights to any benefit under this application, or any benefit certificate issued thereon, until . . . I shall have been regularly adopted or initiated in accordance with the ritual of said society, . . . and said benefit certificate shall have been issued in pursuance of this application and delivered to me, after adoption or initiation, . . .” There is no contention that Gilmore was- ever initiated and it is shown that he was never in the lodge room. The authorities agree that initiation is a condition precedent to membership in such associations. [Porter v. Loyal Americans, 180 Mo. App. 538, 167 S. W. 578, and cases cited.] Appellant contends that the court erred in not permitting her to prove that it had been the custom of the local lodge to not exact initiation and that such conduct had been continued on the part of the local lodge for such a length of time as. to have necessarily •been known to the Supreme Lodge and that such evidence was competent on the question of whether or not the defendant by its acts was estopped to deny liability. On cross-examination of defendant’s witness Jones, secretary of the local lodge, it developed that — 452 — during the year be bad been secretary but one person (besides Gilmore) bad applied for membership. Jones testified that be delivered tbe certificate to that applicant on November' 19, 1912, and that tbe books of tbe local lodge showed- be was initiated on February 15, 1913. He testified that be left tbe impression on that applicant as well as on Gilmore when be delivered their certificates that they would be in force whether they were initiated or not. Plaintiff in rebuttal called as a witness a man who bad served five years as secretary of this local lodge and .offered to show that during that period be bad “delivered a number of policies to members without their obligation, adoption or initiation.” Tbe objection to this offer was sustained and exception saved. There wasi no offer to show wha,t “number” of certificates bad been thus delivered or that such a course of dealing bad been carried on by this local lodge so as to have necessarily been known to the Supreme Lodge. Moreover, there was no offer to show that Gilmore knew that certificates bad ever been delivered without initiation. He told bis wife that be was to be initiated. None of respondent’s supreme officers knew that Gilmore bad not been initiated. They were informed that be bad been initiated. Section 22 of tbe Act of 1911 (Laws 1911, p. 292) provides that tbe constitution and laws of tbe society may provide that no subordinate body, nor any of tbe subordinate officers or members, shall have tbe power or authority to waive any of tbe provisions of tbe laws and constitution of tbe society, and respondent’s by-laws (which we think were properly admitted in evidence) did contain such a provision as to subordinate officers and did require initiation as a condition precedent to membership. • Appellant insists that tbe court erred in directing a verdict for tbe defendant because she contends that on tbe question óf whether or not Gilmore was ini — 453 — tiated slie had sufficient proof of that —made by her prima-facie case —to take the question to the jury. The proof that appellant had was simply the possession of the certificate sued on and the fact that it was delivered to Gilmore on December 14, 1912. Besides this, the secretary of the local lodge had reported on either the 14th or 15th of December, 1912, to the Supreme Lodge that the certificate had been delivered and that Gilmore had been “adopted.” In a subsequent report sent in by him in January after Gilmore’s death, being a report of the lodge. for the month of December, Gilmore’s name is shown as having been “adopted” on December 14, 1912. The plaintiff testified that her husband told her he was to be initiated, but she did not know whether he was initiated or not. This is all the evidence offered by plaintiff that she contends should have taken the case to the jury. Jones, the secretary of the local lodge, was placed on the stand by the defendant and testified that he took the application of Gilmore and sent it in and that in due time the certificate was sent to him to be delivered to Gilmore under the rules and regulations of the society. As hereinbefore shown the by-laws require that before the certificate shall be binding on the Supreme Lodge the applicant must be “adopted, initiated and obligated.” Whether these three words call for one and the same proceeding and'form is not made very clear in the record as in some places in the certificate and by-laws the words are connected by the conjunctive “and,” while in other places they are connected by the disjunctive “or.” Jones testified that when the certificate was received by him from the Supreme Lodge, he, not having had much experience in handling and delivering certificates, was under the impression that the matter of initiation was left to the option of the local lodge and was not a requirement of the Supreme Lodge, and that he was further1 of the impression that when he delivered the certificate to the — 454 — applicant that was an “adoption.” He testified that acting under this belief he delivered the certificate and led the applicant to believe that the insurance was in force. He stated that the reports which he sent in concerning this case were not made at any lodge meeting but were made by him outside of the lodge room. He also testified that no meeting of the local lodge was held from the time this certificate was delivered to him by the Supreme Lodge until after Gilmore’s death. He stated that he also reported the same facts as to the “adoption” etc., with reference to one other member to whom he had delivered a certificate without having him first go through the initiation and take the ritualistic work. Being the secretary of the local lodge, he is the one person connected therewith above all others who would be at any lodge meetings and record the proceedings. His testimony stands uncontradicted as plaintiff makes no attempt to show that there was a meeting at which Gilmore could have been initiated or. that he ever went to the lodge room for the purpose of being initiated or that there was ever any entry made during a lodge meeting evidencing an initiation. Plaintiff relies solely upon the presumption raised by the possession of the certificate and the reports made under the circumstances above detailed— for plaintiff’s prima-faeie case was no more than a presumption that the applicant had been initiated. When that issue was raised by the answer and the facts developed by positive, uncontradicted testimony bearing no stamp' of suspicion, nor any attempt on the part of the plaintiff to show that such evidence was untrue or improbable, and in no way attempted to show any countervailing evidence or circumstance, the presumption must of necessity submit to the facts. As said in 22 Am. and Eng. Ency. Law, 1294: “A prima-faeie case is that which is received or continues until the contrary is shown. Prima-faeie evidence means evidence which is sufficient to establish the fact — 455 — unless rebutted; evidence which standing alone and unexplained would maintain the proposition and warrant the conclusion to support which it is introduced. ’ ’ It is, in the absence of explanation or contradiction, an apparent, case, sufficient in the eyes of the law to establish the fact, and, if not rebutted, remains sufficient for that purpose. [See, Smith v. Burrus, 106 Mo. l. c. 100, 16 S. W. 881; also Gilpin v. Railway Co., 197 Mo. l. c. 325, 94 S. W. 869.] Presumptions disappear in the light of actual facts. [Mockowik v. Railroad, 196 Mo. 550, 94 S. W. 256; Schaub v. Railroad, 133 Mo. App. l. c. 450, 113 S. W. 1163.] It is as much the duty of a trial court to direct a verdict for the defendant where the undisputed facts show no liability to have been incurred as it is to submit the case to the jury where the evidence is con-' flicting. [Powell v. Railway Co., 76 Mo. l. c. 83; Gee v. Drug Co., 105 Mo. App. 27, 78 S. W. 288; Carter-Montgomerie & Co. v. Steele, 83 Mo. App. 211, 215; and May v. Crawford, 150 Mo. 527, 51 S. W. 693.] The cases cited by appellant are eases where the question of whether an initiation took place or whether the applicant had never become a member of the society was not involved. In those cases it was' admitted that the individual at one time had become a member and was regularly initiated and in good standing, but, through some fault had forfeited his membership, Those cases therefore deal with the forfeiture of a right conceded to have once existed. But in our case the vitality of the certificate is denied from its incept tion; there is a denial that a certificate on which liability could exist ever passed into the hands of any one having a right to it. If the position contended for by appellant should be sustained, a certificate in the hands of a person who under uncontradicted evidence obtained it by theft would be some evidence upon which an issue could be put to the jury for them to possibly find that it had — 456 — been regularly issued and delivered. Tbe presumption prevails, and should prevail as1 the decisions declare, that in the absence of evidence the certificate was regularly deposited in proper hands; but such presumption cannot be permitted by a court or jury to contradict the plain, uncontroverted facts as to how it got into the hands of the individual. There is no proof whatever that the Supreme Lodge ever knew, prior to Gilmore's death, that he had not been initiated and obligated. Upon ascertaining this fact it immediately tendered the initiation fee and payments to the plaintiff which she refused to accept. Finding no error, the judgment is affirmed. Robertson, P. J., and Sturgis, J., concur.