Allman v. Order of United Commercial Travelers of America

BLAIR, P. J. This is an appeal from a judgment for $8601.67 in an action respondent brought upon a benefit certificate issued upon the life of her husband by appellant, a 'fraternal beneficiary society. The evidence showed respondent’s husband joined appellant order December 5, 1913, was accidentally injured on March 1, 1914, and died on March 12, 1914. Appellant earnestly contends (1) there is no evidence the injury was the cause of death; (2) that, at most, it conclusively appears the injury was not the sole cause of death; (3) that on several grounds, all rights under the certificate were forfeited; and (4) that numerous errors occurred at the trial. The question whether forfeitures were waived is the basis of one of the principal controversies in the case. The benefit certificate sued on and the applicable statute . (Sec. 9, p. 286, Laws 1911) provide that the certificate, the articles of incorporation, the constitution and by-laws of the society and the application on which the certificate was issued shall constitute the contract between the society and the insured member. The provisions of appellant’s constitution relating to notice [685] and waiver are endorsed on the benefit certificate, and are as follows:' “Any insured member who shall sustain an accident covered by this' article shall, within ten days after the date of such accident, send a notice in writing of said accident (not the results) to the supreme secretary, stating his full name and address, and full particulars of his accident. After the receipt of notice of any accident, as above provided, the supreme secretary shall. within' five days, forward or present to the claimant, beneficiary or attending physician, blanks for the preliminary proof of the accident. Within fifteen days after said blanks shall be forwarded by the supreme secretary, the claimant shall return to the supreme secretary, upon said blanks, preliminary proof of the accidental injuries, setting forth the date and description of the same, together with the report of the attending physician. Whenever deemed advisable the supreme secretary may forward or present blanks to the claimant for final proof, and within fifteen days after the loss of time has terminated or the loss of one or both eyes, or one or both upper dr lower extremities, has occurred, the claimant shall forward to the secretary-treasurer of his subordinate council, said proofs, which shall consist of a final report, signed by the claimant and sworn to before any officer authorized to administer oaths, and a statement of the attending physician. If deemed advisable the claimant may be required to furnish additional reports and additional medical reports. “If death shall result under the conditions covered by this article, a notice of said death must be given in writing to the supreme secretary within ten days after said death, which death notice shall be in addition to the notice of the accident and shall state the cause of death. “Upon receipt of notice of a death as above provided the supreme secretary shall, within thirty days, forward or present to the beneficiary or attending physician blanks for proof of the same, and said beneficiary [686] or attending physician shall return to said supreme secretary such proofs upon said blanks within thirty days from the time the same shall have been forwarded or presented, together with a certified copy of the coroner’s inquest, if one has been held. If deemed advisable the claimant may be required to furnish additional reports and additional medical reports. “The forwarding of blanks for the purpose of proofs as above provided, or the investigation of any claim by a member or officer of the order or anyone authorized to represent the order, or the holding of any autopsy by anyone representing the order, shall not constitute or be a waiver of any right or of any defense which the order may have against any claim made against it, and the making of proofs or filing of notices shall be at claimant’s expense. “Any failure to give or furnish the notices, preliminary proof or final proofs, as hereinbefore required, each within the time limited therefor, shall be deemed a waiver of any .and all claims against the order 'and said claim shall be deemed forfeited by said failure. “No knowledge or information obtained by or furnished to any officer or member of any subordinate, grand or supreme council of the order, except the supreme secretary of the order, shall be held or construed to be knowledge of or notice to the order. .... “No officer, member or agent of any subordinate,’ grand, or the supreme council of this order is authorized or permitted to waive any of the provisions of the constitution of this order relating to insurance as the same are now in force or may be hereafter enacted.” The accident which respondent claims and the jury found resulted in Allman’s death, occurred on March 1, 1914. Its immediate effects were several minutes of unconsciousness and a considerable shock. Beyond this it did not materially interfere with Allman’s performance of his duties as a traveling salesman between March 1, 1914, and the night of March 11, 1914. He covered his usual route during this time. There was some evidence of soreness in the left side and arms, [687] and headaches. During this period neither he nor anyone gave appellant or anyone connected with it any notice of the accident. On the night of March 11, 1914, Allman was seized with severe pain and died in convulsions, at Rodgers, Arkansas, on the morning of March 12, 1914. The attending physicians on the same day filed with the local registrar of vital statistics a certificate of death in which it was stated Allman died from neuralgia of the heart. Upon the evidence concerning ydiat happened subsequently, questions of forfeiture and waiver are raised. This evidence will be set forth more fully in the opinion. I. (a.) The funeral of Allman was conducted by the members of the Neosho subordinate council of appellant, of which local council Allman' was a.member. On March 18, 1914, respondent wrote Gettings, secretary-treasurer of the Neosho subordinate council, expressing appreciation of the council’s kindness to her and the “honor they have shown my husband in death.” No notice of any kind of the original accident was sent to anyone during the ten days immediately following March 1, 1914, and, excepting the letter from respondent to Gettings, neither respondent nor anyone for her communicated with anyone connected with the order until considerably more than ten days after Allman’s death. Notice. • On this phase of the case appellant contends a forfeiture resulted (1) from the failure to give notice within ten days after the happening of the accident on March first, and (2) from failure to give notice 0£ within ten days after death occurred. In the view we take of the case it is not necessary to discuss the first proposition. Respondent in her brief very properly concedes “that the supreme office of appellant was not notified-of the death within the ten-day period.” The record has nothing in it to justify any other position.- Respondent suggests, on the other hand, that officers of the [688] Neoslio subordinate cou|neil were present at Allman’s funeral, and adds that it was “not seriously disputed that these same officers . . . were clothed with authority to receive notice of death.” The constitution of the order, which, by express statute (Sec. 9, p. 286, Laws 1911) and the agreement of the parties to the benefit certificate, is a part of the contract sued on in this case, explicitly provides that, in case of death, notice thereof shall be given to the supreme secretary of the order within ten days, and as explicitly provides that knowledge or information of members and officers of local councils shall not be “held or construed to be knowledge of or notice to the order.” .These stipulations it was within the power of the parties to make and, by express statute (supra), bind respondent.. Since they have been made by the parties, this court has no power to exscind them or hold that their violation is no violation of the contract. [2 Bacon on Benefit Societies, secs. 568, 573.] There is no suggestion in the record 'or briefs that failure to give the requisite notice was due to any fact or condition constituting a legal excuse therefor, and the authorities are quite uniform that a provision for notice within ten days is not an unreasonable requirement. Appellant’s counsel made the point throughout the case and consistently insisted that evidence of knowledge by members of the subordinate council was inadmissible. There is no escape from the conclusion that there is not a scintilla of evidence tending to show compliance with the requirement concerning notice. Forfeiture (b) By the contract itself it is provided that the failure to give the notice required thereby shall work an immediate forfeiture. There is no ambiguity in language. The parties had the power to give this effect to the violation of the provision for notice; and since they have given it this effect, this court can no more strike this stipulation from the contract than it could insert it had the [689] parties omitted it. [Dezell v. Fidelity & Casualty Co., 176 Mo. l. c. 281.] II. The principal question is, whether the forfeiture was waived. Knowledge of Local Lodge. (a) The constitution of the order provides that no officer, member or agent of any subordinate council can waive any provisions of the constitution of the order relating to insurance. This is a part of the contract sued on and is a valid stipulation. [Sec. 22, Laws 1911, p. 292; Brittenham v. W. O. W., 180 Mo. App. l. c. 534.] It follows that neither the evidence of the attendance of members of tlie local council at Allman’s funeral nor Gettings’ letter to respondent was competent upon the question of waiver. Waíver (b) March 31, 1914, respondent wrote the supreme secretary of appellant order, stating the fact and date of her husband’s death and requesting the secretary to send her blanks for proof of claim;. This was received by appellant April 2, 1914. In reply the blank was sent and respondent was asked to “please write such particulars of the death as you possess.” The blank enclosed bore on its face and across its top these words: “In sending this blank this order does not waive any provision of the constitution, but expressly reserves the same.” Upon this blank respondent wrote a statement wherein she gave her husband’s name, name of the subordinate council of which he had been a member, date and manner of injury and its effects, date and place of death and name of attending physician. She went to no expense and took no further steps until she began this action. The blank was neither requested nor sent during the currency of the period during which notice might have been given undér the contract. The constitution provides that sending blanks shall not constitute waiver. The blanks conclusively show absence of any intent to waive the forfeiture, and respondent was not in any [690] way misled to her prejudice; no element of estoppel appears. The mere sending of the blanks at respondent’s request does not tend to prove waiver. [Loesch v. Union Casualty & Surety Co., 176 Mo. l. c. 666; Boren v. Brotherhood, 145. Mo. App. l. c. 137; Chandler v. Insurance Co., 180 Mo. App. l. c. 400; Shearlock v. Insurance Co., 193 Mo. App. l. c. 438; Ridgeway v. M. W. A., 98 Kan. 241, L. R. A. 1917A, p. 1062 and note.] Correspondence Between Officers. (c) June 18, 1914, Gettings; secretary-treasurer of Neosho council, transmitted to respondent a letter written him by the supreme surgeon of appellant under date of June 15, 1914. This showed Gettings had written the order under date of May 26, 1914, in regard to the Allman claim. It stated that “the matter of the disposition of. this claim will be held in abeyance until after the supreme council meeting, owing to rush of business at the time of our annual meeting. Trusting the above answers,” etc. The annual meeting was held on the 4th Tuesday in June of each year. This letter of the supreme surgeon contains nothing which has in it any element -of waiver or estoppel. It was not written to respondent. There is no contention Gettings was directed or authorized to transmit it to respondent, or that his inquiry was made for her or at her suggestion. What it means is that the question was not yet passed upon. Respondent did nothing on the faith of the letter. It has no probative force on this issue. Collecting Evidence for Defense. (d) The next thing in chronological order was the institution of this action on September 11, 1914. On October 5th Gettings and an attorney called upon respondent and, according to her testimony, said to her: “We want to get the proof and want you to give the affidavit of what you know.” She said neither of them made any other statement to her. On cross-examination she said Gettings asked her if she was willing to make an affidavit of what she knew. She assented. Gettings had the affidavit drawn, and she found it correct and [691] swore to it. He had asked her as to the facts. It was substantially like the statement she had previously sent the order. She was put to no expense. She testified that at the same time and place Dr. Fulkerson made an affidavit. He had made none previously. (His affidavit covered the results of an examination he had made of Allman November 23,1919). This was after suit brought It does not appear that (lettings or the attorney had any authority from the order. The attorney was not then employed in this case. What Gettings did on his own motion and what the attorney did at his instance, for reasons already given, are not evidence of waiver. Further, even had the order attempted to collect evidence for its defense this would not, in the circumstances shown in this case, have been evidence of waiver or estoppel. This court has held (Dezell v. Fidelity & Casualty Co., 176 Mo. l. c. 264 et seq.) that an insurance company does not waive the defense of lack of notice by joining with it in its anwer a deniál of liability or any other valid and legally consistent plea, and this ruling would be an absurdity if it is to be held that, though such company may plead such other defense without waiver, it cannot prepare to establish it except under the penalty of waiver. Compromise. (e) After suit was begun and, it seems, some time in October after the affidavits mentioned in the previous paragraph (d) were made, Dr. Taylor, supreme surgeon of appellant order, came to respondent’s home, and, according to her testimony, told her he was adjuster” of the order; said “that the boys wanted to help me and that he had money in his pocket for me if I would receive it. I told Dr. Taylor if he compromised the case that day it would be for the full amount, and he got up and said: ‘Very well, if you want to fight this case, why, I shall proceed to have' an autopsy held over the body of your husband. ’ I said, ‘All right.’ ” He asked where he could get a stenographer and was told, and then left and respondent saw him no more until the day of trial. On cross-exam [692] ination she said she understood Taylor was talking about settling the suit; that he wanted her to stop the suit; that in saying to her that “the boys wanted to help” her, Taylor had reference to the Neosho council; that he didn’t propose to pay anything on behalf of appellant order. Respondent’s testimony thus demonstrates that Taylor was merely trying to settle or compromise the pending action and that the offer of money he made was not an offer from appellant, hut an offer in behalf of the local council at Neosho. There is nothing in this incident tending to prove waiver, and respondent herself testifies, in effect, the offer of money was not made at the instance of appellant. If it had been, there is nothing in a mere offer of compromise, with nothing more, which tends to prove waiver in this case. Autopsy. (f) A formal demand for an autopsy was subsequently made. It was a demand appellant had a right to make, in proper circumstances, in furtherance of its preparation for trial. The constitution expressly provides such demand may be made and that any refusal comply shall forfeit the claim under the certificate. One question in this case is, whether the demand was refused and all rights under the certificate forfeited for that reason. In view of the statement in the death certificate that Allman died of neuralgia of the heart and of the very reasonable doubt upon the question whether Allman died from the effects of his accidental injury, an autopsy would seem, if applied for in proper time and circumstances, to have been a reasonable method of aiding the solution of one of the chief issues of fact in this case. Appellant had the right to prepare for trial on all defenses. The action had been begun. There is no claim anything was said or written or done in connection with this demand which implied a waiver of anything or that respondent took any action of any kind as a result of this demand except that her attorney rejected it. [693] Abandonment (g) On November 3, 1914, respondent’s then counsel wrote Dr. Taylor, stating be bad advised that “it is absolutely useless to negotitate or even confer with you or other representatives of your association, and therefore all such negotiations are now and shall be concluded except that you will pay the amount sued for.” November 19, 1914, appellant wrote respondent announcing the rejection, of the claim by appellant’s supreme council, and stating “that the claim was disallowed for constitutional reasons. We believe it is unnecessary to specify the reasons for the -disallowance item by item as the specifications will be set forth by our chief attorney in due time.” The letter tendered the proofs, etc., respondent had furnished, and offered to forward them as soon as respondent advised the manner of return. It also stated that respondent’s attorney’s letter and the registry receipt signed .by the respondent showing receipt of request for autopsy were in appellant’s possession. The denial of liability came after forfeiture and after suit brought. It did not place that denial exclusively on a ground or grounds other than forfeiture. It was general and asserted reliance on the provisions of the constitution of the order. One provision of the constitution was that for notice and another was for forfeiture in case of failure to give notice. The letter contains no implication that the - claim is rejected on any ground which would justify an inference of abandon' ment of the forfeiture for failure to give notice. It was not written during the currency of the period for giving-notice, but after forfeiture, and there is no suggestion that anything was done by respondent upon the faith of any belief, engendered by this letter, that caused her expense or prejudiced her in any way. [694] Conclusion [693] III. Though full effect be given to the most stringent rules applicable against a claim of forfeiture, and though the most liberal rules be applied in considering [694] respondent’s evidence offered to show waiver or estoppel, it is not possible on this record to hold otherwise than that this judgment cannot stand. There is a conclusive showing that respondent is not entitled to recover. Judgment reversed. All concur except Bond, J., not sitting.