Brittenham v. Sovereign Camp Woodmen of the World

1. INSURANCE: Contracts of: Forfeiture: Construction. The law does not favor forfeitures and contracts of insurance, providing for forfeitures, should be strictly construed against the insurer. 2. MUTUAL BENEFIT INSURANCE: Contracts: Construction of. Conditions and provisions in a fraternal life insurance contract' presenting an ambiguity are to be construed most strongly against those for whom they are introduced. 3. —-: Certificates: Construction of Entirety. In construing mutual life insurance certificates effect must be given if possible to all parts thereof, both written and printed. 4. -: -: By-laws Part of Contract. Where a member of a fraternal insurance order did not comply with the by-laws requiring members to give notice before engaging in certain occupations which- were prohibited and pay the additional fee ' required, his certificate was void, because under Acts 1911, p. 286, sec. 9, the by-laws, rules and constitution of fraternal insurance orders are made a part of the contract by the certificate. 5. -: Contracts: Obedience to All Provisions. Under a fraternal insurance certificate to enable the beneficiary to recover, the insured must have been obedient to the terms and conditions contained in the application, certificate, rules, bylaws and constitution, which must be construed together when made a part of the contract. 6. -: Certificates: Provisions of: Waiver. When a fraternal insurance certificate 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, sec. 22.] 7. -1-: Violating Terms of Contract: Forfeiture. The bylaws of a fraternal insurance company provides that if a member should engage in certain occupations prohibited by the certificate, he should give notice thereof and pay an additional premium, otherwise the certificate would be void. The certificate of a member who failed to comply with these provisions was invalidated without action, by the insurer. 8. -: Agreements of Forfeiture: Enforcement, Where it is agreed that forfeiture will result in case the assessments on a fraternal certificate are not paid, such agreement will be enforced by the courts regardless of whether the condition be considered precedent or ■ subsequent. 9. -: By-laws Construed. A member of a fraternal insurance order engaged in a prohibited occupation and did not give notice thereof as required nor pay the additional premiums necessary to prevent forfeiture. Although the by-laws provided that payment of a certificate should not be contested save on stated grounds when the same had been in force for five consecutive years immediately preceding death, while the member was in good standing, recovery could not be had because the member having failed to meet the requirements was not a member in good standing at the time of his death. 10.-: Estoppel: When not Available. A member of a fraternal insurance order violated the provisions of his certificate by engaging in a prohibited occupation, which' worked a forfeiture of his certificate under the agreement. Of this violation the officers of the order were not cognizant, no notice having been given them as required by the certificate. The order was not estopped from setting up the forfeiture as a defense merely because it had refused payment on another ground.

Appeal from Jasper County Circuit Court, Division No. Two. — Eon. David E. Blair, Judge. (1) Suit against a Fraternal Beneficiary Association. It is not an insurance company and is not governed by tbe insurance statutes of tbis State. Its constitution, all tbe provisions of tbe certificates, or policies, its by-laws, rules and regulations, .either in force at tbe time a person becomes a member or enacted afterwards, are binding on bim. Statutes 1911, p. 284; Evans v. Modern Woodmen of America, 147 Mo. App. 155; Westerman v. Knights, etc., 196 Mo. 670, 704, 727. (2) Tbe. monthly dues must be paid-as provided; if not tbe member is ipso facto, by tbe very act, suspended. There is no notice, no judicial finding, necessary to be given to tbe member, nor determined, in order for tbe member to become suspended and his certificate to become null and void and for bis beneficiary to lose all benefits therefrom. It is a rule of tbe association. Sec. 109, Subsection (B) By-Laws; Burke v. Lodge, 136 Mo. App. 450; Burcbard v. Western, etc., 139 Mo. App. 606; Easter v. B. F. A. Y., 154 Mo. App. 456; Britt v. Sovereign, etc., 153 Mo. App. 698; Knode v. Modern Woodmen of America, 171 Mo. App. 377. (3) No member of local camp has a right to waive any provision of tbe by-laws, etc. Laws 1911, p. 292, section 22; Day et al. v. Supreme Forest Woodmen Circle, 174 Mo. App. 260; Lavin v. Grand Lodge, etc., 104 Mo. App. 1; Same case, 112 Mo. App. 1; Clair v. Royal Arcanum, 172 Mo. App. 709. (4) Each and every agreement, stipulation, by-law, etc., must be fulfilled by tbe policyholder in order for him to get tbe advantage of tbe benefits. He must bring himself within tbe provisions of tbe non-contestable by-laws in order to cut tbe defendant off from tbe several defenses that it sets up. He must be in good standing; this be could not have been when be bad entered a prohibited business or occupation. As soon as be became a bartender, and did not notify tbe clerk of tbe local camp of that fact and pay tbe additional fifty cents, be became suspended and bis interest in tbe beneficial fund lost. Ellerbe v. Faust, 119 Mo. 653; Knode v. M. W. of A., 171 Mo. App. 377; Clair v. Royal Arcanum, 172 Mo. App. 709. (1) Certificates of insurance in fraternal beneficiary association are not exempt from tbe general rule that forfeitures are not favorites of tbe law, and that contracts providing for forfeitures should be strictly construed against tbe insurer. Matthews v. Modern Woodmen, 236 Mo. 326-344; McMahan v. The Maceabees, 151 Mo. 522-527; Burke v. A. O. U. W., 136 Mo. App. 456. (2) Conditions and provisions in policies are to be construed strictly against the insurer, as they tend to narrow the range and limit the force of the principal obligations. Conditions providing for disabilities and forfeitures are to receive, where the intent is doubtful, a strict construction against those for whose benefit they were introduced. Renn v. The Supreme Lodge, 83 Mo. App. 447; Matthews v. Modern Woodmen, 236 Mo. 343; Walton v. The Fraternal Aid, 149 Mo. 493-496; Burchard v. The Insurance Co., 139 Mo. App. 606. (3) Effect must be given if possible to all parts of the policy, both written and printed. 16 Am. & Eng. Ency..of Law (2 Ed.), 864; Matthews v. The Woodmen, 236 Mo. 326; Clark v. Modem Woodmen, 170 Mo. App. 210. (4) Where the contract is of doubtful or ambiguous meaning, it will be construed most strongly against the insurers. Matthews v. The Woodmen, 236 Mo. 326; Aetna Life Ins. Co. v. Mining Co., 154 S. W. 829; 16 Am. & Eng. E<ncy. Law (2 Ed.), 863. (5) Plaintiff’s tender of the August assessment, during the month of August, and offer to pay the same prevented assured’s policy from lapsing. Stephenson v. Kilpatrick, 166 Mo. 267; Berthold v. Reyburn, 37 Mo. 586; Wheelan v. Reilly, 61 Mo. 568; Potter v. Shaffer, 209 Mo. 596; Walsh v. Sfc. L. Exposition, 101 Mo. 534. Statement. — Plaintiff recovered a judgment for one thousand dollars against the defendant on a beneficiary certificate issued on the life of Marriaman H. Brittenham who during his lifetime was the husband of the plaintiff. The defendant is a fraternal beneficiary association organized under the laws of the State of Nebraska and duly authorized to do business in Missouri. The certificate was dated May 10, 1906, and the assured became a member of the local camp of the order at Joplin, in this State. He died on September 28, 1912, and in due course of time this suit was instituted by the beneficiary for the face amount of the certificate. There were three defenses pleaded in the answer. Appellant assigns several grounds for reversal. However, under the view we take of the case it is necessary to discuss only the one which we deem decisive. It is that the assured was not in good standing in the order at the time of his death and had not been for two years prior thereto because of having engaged in a prohibited occupation, to-wit, that of bartender and helper in a saloon. There is no controversy concerning the fact that for about two years prior to the latter part of July, 1912, the last named date being about sixty days before the death of the assured, he had been engaged as bartender and helper in at least two saloons in the city of Joplin; and there is no showing that after the latter part of July, 1912, he engaged in any other occupation. At that time he was not living with his wife. At the time of his death he was confined in the jail of Jasper county, having been arrested for shooting at his wife. The by-laws of the defendant order as to assessments provide: “Sec. 109 (A) All members of this order shall pay to the clerk of his camp each month their assessments ; payment to be made as provided in Section 56, which shall be credited to and known as Sovereign Camp Fund; and he shall also pay such local camp dues as may be required by theby-laws of his camp-; this is twenty-five cents per month; in 'addition to the assessment for the Sovereign Camp Fund. . ' • '“(B) If he fails to make any such payments oh ■or before the first day of the month following, he shall stand suspended, and during such suspension his beneficiary certificate shall be void.” The amount of the assessment-or rates of the assessment as provided in Section 56, above referred to, for members between thirty and thirty-three, ’ which Brittenham was, on each one thousand dollars, per month, is one dollar, making total dues of $1.25, per month. The beneficiary certificate provides that “this certificató is issued and accepted subject to all the conditions on the back hereof and subject to all the laws, rules and regulations in the fraternity now in force Or that may be hereafter enacted and shall be null and void if said member does not comply with all of said conditions and with all of said laws, rules and regulations of the Sovereign Camp of the Woodmen of the World that are now in force or that may hereafter be enacted and with the by-laws of camp of which he is a member.” On'the back of the certificate is the following : ‘ ‘ 2nd. If the admission fees, dues, and Sovereign Camp Funds assessment levied against the person named in this certificate are not paid to the clerk of his camp as required by the constitution and laws of the order, this certificate shall be null and void.” The laws of the order also provide (See. 42) as follows : “Persons engaged in the following classes of business or employment shall not be admitted: “(a) — bartenders or those engaged in the retailing of intoxicating liquors as a beverage; also persons employed in the making, compounding, distilling, rectifying or brewing of malt, spirituous, vinous or intoxicating liquors, or in the distribution or delivery of the same. “ (b) The beneficiary certificate of a member wlm shall engage in any prohibited occupation shall thereby become null and void unless such member shall within thirty days after engaging in such prohibited occupation notify the clerk of his camp, in writing, of-such change of occupation, and thereafter, while so engaged, pay an additional sum of fifty cents on each assessment for each one thousand dollars of his beneficiary certificate.” Subsection b of the general section 66 of the laws of the order provides:. “(b) The knowledge of any officer or of any-of the members of the camp that a member thereof has become so far intemperate from the use of intoxicating liquors as to produce delirium tremens, or habitually uses opiates, cocaine, chloral, or other narcotic or poison, or has violated any of the provisions of these laws, or the receipt by his camp of payment of any dues or assessments, or payment by him of the same, shall not in any manner make the Sovereign Camp liable on his certificate, when by these laws his certificate is made null and void and all his rights as a member forfeited.” Subsection a of general section 69 provides: “ (a) No officer, employee, or agent of the Sovereign Camp, or of any Camp, has the power, right or authority to waive any of the conditions upon which beneficiary certificates are issued, or to change, vary, or waive any of the provisions of this constitution or these laws, nor shall any custom on the part of any camp or any number of camps — with or without the knowledge of any sovereign officer — have the effect of so changing, modifying, waiving or foregoing such laws or requirements. Each and every beneficiary certificate is issued only upon the conditions stated in and subject to the constitution and laws, then in force or thereafter enacted.” Subsection g of general section 93 provides: “(g) The clerk of a camp shall not by acts, representations, waivers, or by vote of his camp, have any power or authority not delegated to him or to the camp by the constitution, and laws of the order to bind the Sovereign Camp or his camp.” Subsection a of section 109 provides: “(a) Every member of this Order shall pay to the clerk of his camp each month one assessment payment, as required by Section 56, which shall be credited to and known as ‘Sovereign Camp Fund,’ and he shall also pay such camp dues as may be required by the' by-laws of his camp. He shall pay any additional assessments for the Sovereign Camp Fund and camp •dues, or either, which may be legally called.” Subsection b of the same general section provides: “(b) If he fails to make any such payments on or before the first day of the month following, he shall stand suspended, and during such suspension his beneficiary certificate shall be void.” Subsections a and b of general section 118 provides : “(a) No suspended member shall be reinstated whose health is at the time impaired or who has used intoxicants to such an extent as to become frequently intoxicated, or who has become addicted to the use of opiates, cocaine, chloral or other narcotic poison to such an extent as to impair his health, or who has made false representations in his application to become a member, or been guilty of any of the offenses mentioned in these laws. “(b) Should any clerk knowingly violate this section, he shall on proof thereof be suspended from his office by the Sovereign Commander, and expelled from the Order by his camp.” The application of Brittenham upon which the certificate in suit was issued contains, among other things, the following: “I am neither directly or indirectly engaged in any of the following prohibited occupations: — saloonkeeper, bartender; nor engaged in the retailing of intoxicating liquors as beverage, or employed in the . . . distribution or delivery of the same.” Also, the following: “I hereby consent and agree that this application, consisting of two pages, to each of which I have attached my signature, the examining physician’s report and all the provisions of the Constitution and Laws of the Order, now in force or that may hereafter be adopted, shall constitute the basis for and form a part of any beneficiary certificate • that may be issued to me by the Sovereign Camp of the Woodmen of the World, whether printed or referred to therein or not.” Section 68 of the laws of the order provides: “When a beneficiary certificate has been in force for five consecutive years immediately preceding the death, while in good standing, of the member holding the same, the payment thereof shall not be contested on any ground other than that his death was intentionally caused by the beneficiary or beneficiaries, or by the hands of justice, or from the direct result of drinking intoxicating liquors or from the use of opiates, cocaine, chloral or other narcotic poison.” It is shown beyond question that the assessments of $1.25 per month — which was the amount due monthly from the assured provided he was not in a prohibited occupation — had all been paid up to and including July, 1912, the same having been paid by the beneficiary, the plaintiff herein. And, so far as the question on which we will decide the case is concerned, it may be considered that the assessment for August, 1912, was paid • (although there is a controversy as to the payment of that assessment, the evidence showing that defendant claimed the August assessment was never paid, and in fact it was not paid) and for the purpose of this case we will treat the tender of $1.25 by the plaintiff to the proper officer of the local camp during the month of August, 1912, as a payment; hence it will not be necessary to pass upon defendant’s contention that the assured was not in good standing at the time of his death because of a failure to pay the August assessment which was due on September 1,1912. It is shown that the defendant’s sovereign clerk, in answer to a demand for the amount of the certificate, wrote a letter dated October 24, 1912, at Omaha, Nebraska, addressed to plaintiff’s attorneys, which is as follows: “In reply to yonr recent letter relative to the death of Mr. H. M. Brittenham, we have investigated the membership formerly held by the deceased in our Camp No. 395 at Joplin, and find that this membership was suspended on September 1st for nonpayment of dues and assessments, and was not subsequently reinstated. “Assuming that death occurred since the date of his suspension from this Order, it would be impossible for us to assume any liability as a result thereof. Our local clerk has regularly reported .the suspension of the deceased, and I presume, having knowledge of the same, has .not reported the death of Mr. Brittenhan. ‘ ‘ The fact that he was suspended would render his beneficiary certificate void.” There is no evidence that any of the sovereign camp officers ever knew at any time from the date of the issuance of the certificate to the date when the letter was written that the insured had ever engaged in a prohibited occupation.