Dessauer v. Supreme Tent of the Knights of Maccabees of the World

REYNOLD'S, P. J. The petition in this case avers that on August 14, 1900', the defendant organization issued to one Emanuel Dessauer its, certificate of membership whereby- it was agreed, among other things, that upon satisfactory proof of the death of the member, together with the surrender of the certificate, that defendant would pay to plaintiff, the beneficiary named, who was the wife of the member, the sum of $3000. Averring that the member had observed and performed all the conditions and stipulations in the certificate and had made all payments required to be made under its terms, and that he died on January 19,1911; that plaintiff furnished all proofs of death required by defendant and surrendered to it therewith the policy or certificate, and that she has demanded payment of the $3000', which has been refused, and averring that that refusal was vexatious, judgment is demanded for $3000, the amount of the — 86 — policy and interest, for ten per cent of that amount by way of damages, and $300' for attorney’s fee, a total of $3600, interest and costs. Attached to this petition as an exhibit and taken as part thereof in the motion for judgment hereafter referred to, is the certificate of membership. This recites that Emanuel Dessauer has been regularly admitted as a member of the order, and that in accordance with, and under the provisions of the laws of the order, he is entitled to all the rights, benefits and privileges of membership therein, and that at his death one assessment on the membership, not exceeding in amount the sum of $3000 will be paid to plaintiff, his wife, upon satisfactory proof of his death, together with the surrender of the certificate, “provided he shall have in every particidar complied with the laws of the order now in force, or that may hereafter be, adopted, and has not obtained his membership by fraud ... as shown by his application, which is hereby made a part of this certificate.” (Italics ours.) This is dated August 14, 19001, the policy being delivered to the member on August 28', 1900: The answer avers that defendant is a fraternal beneficial association, created and organized under the laws of the State of Michigan; that it has complied with the laws of the State of Missouri and is authorized to do business in this State as a fraternal beneficiary association and was so authorized at the time of the issuance of the ’ certificate involved, defendant being successively authorized to do business in this State under the laws thereof after the issuance of the benefit certificate down to the present time. Averring that it has the qualifications required under our law to constitute it a fraternal beneficiary association, and is carried on exclusively as such, it is further averred that on July 13,1900, Dessauer made application to one of the subordinate lodges of the defendant organization for a certificate in the sum of $3000, payable in case of his death to his wife; that in the application for the — 87 — membership Dessauer “agreed that the laws of the Supreme Tent of the Knights of the Maccabees at that time in force, or that might thereafter be adopted, should form the basis of this contract for beneficial membership, and that all the rights of the beneficiary should be governed, measured and controlled by the laws then in force, and by the laws that might thereafter be adopted.” (Italics ours.) Admitting that the certificate was issued upon an application bearing date July 13, 1900, it is averred that the certificate, among other things, provides that the sum of $3000 was to be paid the beneficiary, provided the member shall have, in every particular, complied with the laws of the order at that time in force or that might after that time be adopted”' (Italics ours.) It is further averred that after this certificate had been applied for by and issued to Dessauer, namely, on July 26, 1904; the following-by-law was duly adopted by the order at its annual meeting duly called and held at that time, the amendment designated as section 396', namely: “No benefits shall be paid on account of the death of a member who shall die by his own hand, whether sane or insane, provided, however, that the beneficiary named in life benefit certificate, or the person legally entitled to the benefit, shall receive an amount equal to twice the amount contributed to the life benefit fund by the member during his lifetime. ’ ’ It is averred that this by-law, after its adoption, was printed, published and distributed by defendant, and that the member Dessauer had knowledge and notice of the adoption and promulgation of it, acquiesced in the same and continued to pay his assessments and dues thereafter up to the time of his death. Averring that the member Dessauer, on January 19, 1911, toot his own life by shooting himself in the .head with a pistol and thereby, under the meaning of the law, had committed suicide, and averring that during his life the member had paid into the life benefit fund the — 88 — sum of $372, it is averred that defendant is indebted to plaintiff in double that sum, namely, $744, and no more, which sum it is averred it has tendered to plaintiff and how asks to be allowed to pay into court as the full amount due plaintiff under the certificate. The stipulation of facts sets out that for the purposes of the motion of plaintiff for judgment on the petition, answer, and on this stipulation, that on August 14, 1900-, the date upon which the benefit certificate sued on in the case was issued to Dessauer, the laws of the Supreme Tent relating to suicide were as follows: “No benefit shall be paid . . . when death was the result of suicide within five years after admission, whether the member taking his own life was sane or insane at the time, or when the death of the member was intentionally caused by the beneficiary or beneficiaries of such member; provided, that in case of suicide within five years after admission, all assessments paid to the Supreme Tent by such member shall be paid back to the beneficiary named in the certificate and such amount shall be the full amount that can be claimed in any such case.” It was further agreed in this stipulation that the date of the filing of the petition in the case should be taken as May 18, 1911, upon which date defendant entered its appearance in the case. This stipulation filed, plaintiff filed a motion for judgment on the petition, answer, and stipulation. This motion proceeds on the theory that the defense of suicide set up by defendant, even if proven, would not constitute any defense to the action for the reason that the amended by-law pleaded, and as it is alleged in defendant’s answer, was passed after the issuance of the benefit certificate involved and is therefore not binding upon plaintiff; that it appears by the stipulation filed that at the time that benefit or membership certificate was issued, the by-law set out and — 89 — embodied in the stipulation was in force, and that -it appeared by the pleadings that Dessauer had been a member of defendant organization for more than five years at the time of his death. It is further set out in this motion that defendant had no power, after the issuance of the certificate to the insured, to enact this by-law No. 396, which has the effect to destroy the contract entered into with the insured, and thereby decreasing -the amount the beneficiary shall receive. The first judgment of the court in the case awarded plaintiff $3127.50. On motion this was set aside and a new judgment entered in favor of plaintiff for $3135, that being the full amount called for on the face of the certificate, and interest. When this case was first docketed for hearing we passed it, on the statement of counsel that there was a case then pending in the Supreme Court of our State, the determination of which would have an important bearing on this case. Later that case was decided by the Supreme Court and this cause was redocketed for hearing, argued and submitted. We have the case referred to now before us, it being that of Claudy v. The Royal League, 259 Mo. 92, 168 S. W. 593. The motion for judgment admits all the facts well pleaded in the petition and answer as also those covered by the stipulation. .The learned counsel for respondent challenges the binding effect of the Claudy decision as not covering the facts or point here involved and claims that inasmuch as many of the cases relied upon by him hold a like change of law is not binding on one who had acquired rights prior to the change, that it was not intended to override those decisions. Our consideration of that decision and the opinion of our Supreme Court in that case satisfies us that we are concluded by it in this case. It is true that the opinion does not, by name, overrule all the cases — 90 — relied on Tby counsel for respondent. But when we consider what it does hold and the cases to which it does refer, we think that the point here involved is covered and fully met. Examination of the line of decision and of the cases which are referred to demonstrates this. Thus our own court, in Richmond v. Supreme Lodge, Order of Mutual Protection, 100 Mo. App. 8, 71 S. W. 736, the decision rendered January 20', 190-3, held, discussing the amount to be paid under a certificate, the amended by-law making it lower in amount than the amount payable at the time the certificate was issued, that such amended by-laws were valid, the certificate, by-laws and constitution of the order in force at the time the member joined contemplating and providing for the modification of the member’s right by subsequent by-laws; that under such provision of the organic rules of the order which entered into the contract, such a change was within the power of the association although the member’s consent had not been specifically obtained. A few months later our court, in Morton v. Supreme Council of Royal League, 100 Mo. App. 76, 73 S. W. 259, the opinion filed March 3, 1903, held that a change in the by-laws as to suicide, made after the certificate was issued, did not offset liability for the full amount called for in the certificate; that when the order had so interpreted its contracts as to render itself liable thereunder it could not change its by-laws to the disadvantage of the member or beneficiary, unless the change was reasonable; that even though the certificate holder committed suicide while sane, by providing in the certificate that the company should not be liable if the insured committed suicide within two years after the issue of the certificate and thereafter passing by-laws to the effect that if the insured committed suicide his beneficiary should be entitled to only one-half of the face of the policy, that this change in the by-laws was unreasonable and did not affect the certificate as orig — 91 — inally issued. Since the decision in Morton v. Supreme Council, supra, there have been several decisions of our court and of the other Courts of Appeals holding that changes of the character of the one before us in the by-laws or constitution of the order, unless those changes, or other changes effected in the contract, were reasonable, were invalid. In Claudy v. Royal League, supra, our Supreme Court (l. c. 107), specifically approving our decision in Eichmond v. Supreme Lodge, etc., supra, has, if not by name, by implication, overturned all of these subsequent opinions, or distinguished this from those cases of which Pearson v. Knight Templars & Masons Indemnity Co., 114 Mo. App. 283, 89 S. W. 588, is a type, as being organizations in which an amount certain was contracted for and not as here and in the Claudy case, that amount dependent upon the amount collected by assessment. Our court, in Lewine v. Supreme Lodge, Knights of Pythias of the World, 122 Mo. App. 547, l. c. 554, 99 S. W. 821, held that like certificates create contracts and establish obligations as do others and ‘1 are immune from future impairment, modification or change identically as other contracts are, without the assent of the parties in interest.” We further there held that while the beneficiary “has no vested right in the fund prior to the happening of the contingency upon which the benefit is to accrue; or in other words, that the beneficiary has but an expectancy, subject to the right of the member insured to terminate it if he sees fit so to do,” that “this proposition is not true, however, with respect to the insured. Indeed, while the insured has no vested right in the fund, such as would become assets of his .estate after his decease (Bacon on Benefit Societies (3 Ed.), 237), he has clearly a vested right in the contract with the association whereby he is given the power to designate who shall receive, and the amount that shall be received by those whom he des — 92 — ignates as the recipients of his bounty, and this is considered as in the nature of a property right.” Our conclusion was, that the contract could not he substantially altered or its obligation abridged by a subsequent law as to suicide. In the Claudy case, supra (l. c. 106), it is said: “It is well established -that no vested rights are conferred by a certificate of the character of the one under consideration. [Grand Lodge v. McFadden, 213 Mo. 269, 284, and cases; Westerman v. Supreme Lodge, 196 Mo. l. c. 738.] ” Referring to the Westerman case, supra, the decision of our court in Morton v. Royal Tribe of Joseph, 93 Mo. App. 78, this is quoted approvingly from the opinion in that case: “If the certificate was like an ordinary policy of insurance, or if it had vested any beneficial interest in any one prior to the death of the member, we'would readily yield to the contention [that is that what is now section 6945, Revised Statutes 1909, applied], but it is the settled law that neither the member nor the beneficiary had any vested interest in the certificate of insurance prior to the death of the member. ’ ’ In Grand Lodge v. McFadden, supra, the point in issue was the right of the member to change the beneficiary. That was upheld on the ground that the beneficiary has no vested interest prior to the death of the member, the Supreme Court adopting the view of our court as expressed in the same case. [See 114 Mo. App. 191.] We cannot regard the decision in the Claudy case in any light other than as overruling what we' had in decision in Lewine v. Supreme Lodge, supra. In a very recent opinion by the Supreme Court of Minnesota, Ledy v. National Council of Knights & Ladies of Security, — Minn. —, 151 N. W. 905, that court held that a change in the by-laws of the society, made after one became a member, by which the amount — 93 — of payment in case of suicide was altered, was binding upon both the member and Ms beneficiary. A very full citation of cases in support of that will be found in the opinion, giving that as the rule sustained by the weight of authority, the decision of our court in Lewine v. Supreme Lodge being cited as one of a few decisions to the contrary. While the decision of our court in the Lewine case, supra, is not referred to in the Claudy case, it was cited by counsel for appellants in that case (l. c. 95) among other authorities relied upon. In the Claudy case as in the case' at bar, it was provided in substance, that the member agreed to comply with, and that the rights of Mmself and beneficiaries were subject to, all the laws, rules and regulations in force in the order at the time of his becoming a member ‘ ‘ or which may hereafter be adopted by it. ’ ’ In both cases it is provided that a sum not exceeding the amount named should be payable “in accordance with and under the provisions of the law governing said fund. ’ ’ Says our Supreme Court in the Claudy case (1. c. 106), “This contract, therefore, contemplated that the association might change its by-laws, rules and regulations so as to affect the amount of insurance to be paid, especially in the event of the member’s death by suicide, and the member agreed to be bound by such changes.” In the Claudy case, at the time of the issuance of the benefit certificate, the by-laws of the association provided: “If any member, whether admitted heretofore or hereafter, shall die by his own hand, sane or insane, his beneficiary or beneficiaries shall receive only one-half of the face value of his benefit certificate.” The by-laws, after several changes, at the time of the death of the member and then in force provided: “No member, whether admitted heretofore or hereafter, shall die by his own act or hand (sic), sane or insane, and if any member, whether admitted here — 94 — tofore or Hereafter, shall die by Ms own act or hand, sane or insane, such death shall forfeit all the rights and claims to the amount agreed to be paid on Ms death and specified in the benefit certificate of such member, and Ms beneficiary or beneficiaries shall receive and be paid in lieu thereof, such a proportion of the sum named in Ms benefit certificate as the total amount wMch he has paid into the Widows ’ and Orphans ’ Benefit Fund bears to the amount he would have paid had he lived out Ms entire life expectancy at Ms age of entering. ’ ’ This quoted provision of the by-laws of the Royal League is not as liberal to those of its members who commit suicide as the new by-law in the case at bar. Still our Supreme Court held it to be' a reasonable provision, a reasonable change, in the by-laws. In the case at bar, unlike any such statement in the Olaudy case, is the distinct averment in the answer, admitted by the motion for judgment, that the member Dessauer, “had knowledge and notice of the adoption and promulgation of said by-law (section 396), and acquiesced in the same, and continued to pay his assessments and dues thereafter up to the time of Ms death.” Whether this operated as an estoppel, in the absence of any facts averred in avoidance, is not necessary to determine here. We refer to it as going somewhat further than the constructive notice a member is often said to have of- the organic laws of his society. In the Claudy case, as here, there was a motion for judgment on the pleadings which was sustained by the trial court, it rendering judgment in favor of plaintiff in the sum of $1000, basing tMs on the by-law as to suicide in force at the time of the issue of the certificate. That was the action of the court in the case before us, the amount, however, different. Our Supreme Court said (1. c. 108), “No contractual relation between the member or the beneficiary and the association having been violated by the change in the by-laws and the — 95 — same being reasonable and for tbe best interests of the association, we hold that its action in this regard should be sustained, and so holding it follows that the judgment below should be reversed and remanded, and the trial court directed to enter up judgment in favor of plaintiff” in the sum found to be dne “upon the basis of calculation fixed by the by-law in force at the time of the death of the member.” In the light of this decision, it is nnnecessary to go into any further discussion of this case. The judgment of the circuit court should be reversed and the cause remanded, with directions to that court to enter up judgment in favor of plaintiff for the' amount tendered, to-wit, $744, costs to be taxed against the plaintiff, Allen, J., concurring, but as Nortoni, J., dissents in a separate opinion and asks that the cause be - certified to the Supreme Court as in conflict with Mathews v. Modern Woodmen of America, 236 Mo. 326, 139 S. W. 151, that is accordingly done.