Summary
Appeal from the Circuit Court of Pike County.— Eon. Edgar B. Woolfollt; Judge.
(1) Section 5 of the benefit certificate sued on is valid and prevents a recovery in this case. Cases wherein recovery is allowed where death of the insured is caused by the beneficiary are decided upon construction of the contracts. Sharpless v. G-rand Lodge A. O. TJ. W., 159 N. W. 1086; Schmidt v. Northern Life Assn., 112 Iowa, 41 51 L. R. A. 141; Knights of Honor v. Menkhausen, 209 Ill. 277, 65 L. E. A. 508. (2) The public policy of Missouri respecting forfeitures does apply to fraternal benefit societies. Tice v. Supreme Lodge K. P., 204 Mo. 349, 102 S. W. 1013, 100 S. W. 519; Westermann v. Supreme Lodge K. P., 196 Mo. 670, 94 S. W. 470. (3) It is not unlawful nor against public policy for a contract of life insurance to stipulate that upon certain conditions the policy should become void. Northwestern Life Insurance Company v. Haselett, 105 Ind. 212, 55 Am. Eep. 192; Grand Circle Women of Woodcraft v. Eausch, infra; Dumas v. Northwestern Natl. Ins. Co., 40 L. E. A.. 358; Douglas v. Knickerbocker Life Ins. Co., 83 N. T. 492. (4) It makes no difference that the clause here invoked is in the form of a forfeiture. The result is the same as if it were in the form of an exception to the general risk of death insured against. In either form recovery cannot be had. Clair v. Supreme Council of Royal Arcanum, 155 S. W. 892; Pauley v. M. W. of A., 87 S. W. 990; Hexon v. Knights of Maccabees, 117 N. W. 19; Kempe v. Woodmen of World, 44 S. W. 688; Havle v. Eminent Household of C. W., 176 S. W. 313; Marcoux v. Society of Beneficence, 39 Atl. 1027; Bradley v. Mutual Benefit Life Ins. Co., 45 N. T. 422; Hasper v. Phoenix Ins. Co., 19 Mo. 506, 18 Mo. 109; Supreme Council of Royal Templars v. Curd, 111 111. 284; Dickerson v. Northwestern Mutual Life Ins. Co., 200 Ill. 270; Aetna Life Ins. Co. v. Davey, 123 U. S. 739; Mutual Life Ins. Co. v. Terry, 15 Wall 580. (5) It has been expressly held that the clause here in question is valid and precludes recovery. Travelers Insurance Co. v. Mc-Conkey, 127 U. S. 661; Grand Circle Women of Woodcraft v. Rausch, 134 Pac. 141; Greer v. Supreme Tribe-of Ben Iiur, 190 S'. W. 72.
(1) There is no evidence that at the time its policy was issued defendant was authorized to do business in this State as a fraternal beneficiary society, and although the rule is that the finding by the trier of fact, in an action at law is binding on an appellate court, yet if there is no evidence to support such finding the rule does not prevail. Brewing Co. v. St. Louis, 209 Mo. 601; Vincent v. Means, 207 Mo. 709. Defendant is a corporation organized under the laws of the' State of Illinois — a foreign corporation— and must prove that at the time its policy in controversy was issued, it was authorized to do business in this State as a fraternal beneficiary society, in order to escape being governed by the provisions relating to regular or old line insurance. Gruwell v. Knights & Ladies of Security, 126 Mo. App. 496, '501, and eases there cited; Conner v. Association, 171 Mo. App. 364 (and cases there cited); Brassfield v. Woodman, 88 Mo. App. 208; Brassfieíd v. Knights of Maccabees, 92 Mo. App. 102; Huff v. Woodmen, 85 Mo. App. 96; McDermott v. Woodmen, 97 Mo. App. 636; Keeton v. National Union, 178 Mo. App. 301; Lowenstein v. Old Colony Life Ins. Co., 166 S. W. 889. (2) The character of a company and its liability are determined, not by its name, nor by what it pretends to be, but by the policy in question. Toomey v. Knights of Pythias, 147 Mo. 129; Jacobs v. Life Ass’n, 146 Mo. 523; Folkens v. Ins. Co., 98 Mo. App. 480; Aloe v. Fidelity Mut. Life Ass’n, 164 Mo. 675 Trenton v. Ilumel, 134 Mo. App. 595; State ex rel. v. Vandiver, 213 Mo. 187, 207. “It is not the nature of the society but the terms of the contract in suit that determines the matter. See Wilson v. Gen. Assembly of Am. Benev. Ass’n, 125 Mo. App. 597, 103 S. W. 109, and eases there cited. McPike v. Mystic Circle, 187 Mo. App. 686. (3) Courts will construe policies of insurance most strongly against the insurer; this rule is rigidly applied as to the amount of indemnity to he paid upon the happening of the contingencies insured against, and all doubtful languages and ambiguous provisions relating thereto will he resolved against the Company and in favor of the insured. Stix v. Travelers Indemnity Co., 175 Mo. App. 171; Birtlenham v. Sovereign Camp Woodmen of the World, 167 S. W. 590; Matthews v. Modern Woodmen, 236 Mo. 326; Renn v. Supreme Lodge K. of P., 83 Mo. App. 442; Connecticut Fire Ins. Co. v. Jeary, 51 L. R. A. 698; Mitchel v. Accident Co., 179 Mo. App. 1. LaForce v. Williams Ins. Co., 43 Mo. App 518, 530; Hoffman v. Accident Indemnity Co., 56 Mo. App. 301; Renshaw v. Mo. State Mut. F. & M. Ins. Co., 103 Mo. 595; Realty Co. v. Insurance Co., 179 Mo. App. 138 and cases there cited. Where is a conflict between a policy and the by-laws as to the amount of indemnity to be paid, the policy controls. Courtney v. Fidelity Mut. Aid Ass’n, 120 Mo. App. 115; Good-son v. Nat. Masonic Accident Ass’n, 91 Mo. App. 339, 348; and This rule applies to a foreign as well as a domestic corporation. Goodson v. Nat. Masonic Ass’n, supra; McFarlane v. Inst Co., 124 Mo. 221. The contract will be construed so as to effectuate the indemnity; and this is trué although the insurer may have intended otherwise. LaForce v. Williams Ins. Co., 43 Mo. App. 518; Hoffman v. Accident Ins. Co., 56 Mo. App. 501; Hale v. Insurance Co., 46 Mo. App. 508. (4) In the interpretation of contracts of insurance the maxium, noscitur a sociis, obtains. When a clause stands with others, its sense may be gathered from those which immediately precede and follow it. (5) An insurance contract should not be frittered away by vague and ambiguous clauses, nor emasculated by fine-print hidden forfeitures which the insurer never reads, or if read is misleading. Courts do not, and should not, look with favor on this palpable scheme to deceive ■ and trap the unwary. It would require an excess of legal acumen to discover the “joker” which appellant’s counsel now contends forfeits the insurance. Stix v. Travelers Indemnity Co., 175 Mo. App. 171; Matthews v. Modern Woodman, 236 Mo. 343; Boon v. Aetna Ins. Co., 40 Conn. '586.
STATEMENT. •
Under date of March 12, 1908, the defendant company issued its benefit certificate to Mrs. Bertie Nicholson, a member of the order, by which certificate it promised to pay, at the time of the death of Mrs. Nicholson, while a member of the corporation or society, the sum of $500 to John W. Nicholson, her husband, and $500 to Howard G. Nicholson, her adopted son, these designated as beneficiaries, upon satisfactory proof of the death of Mrs. Nicholson, the certificate representing a total of $1000.
The benefit certificate is attached as an exhibit to the petition and was introduced in evidence and, designating John W. Nicholson, her husband, and Howard G. Nicholson, her adopted son, as beneficiaries, as above, it contains, among other provisions, the following, which are here material:
“That in the event of the death of any beneficiary prior to the death” of said member, and upon his failure to have designated another beneficiary, then the amount to be paid under this certificate shall be due and payable to the other surviving beneficiaries, if there be any, and if none survive him, then to the legal heirs of said member.”
It is further provided that the certificate is issued and accepted subject to the agreements, privileges and conditions named, among which is this, number 5:
“5. If a member holding this certificate shall be convicted of a felony, or shall be expelled from the Order, or become so far intemperate, or use opiates, cocaine, chloral of other narcotics or poison to such an extent as to impair his health or to produce delirium tremens, or should die in consequence of a duel or while engaged in war, or by suicide, whether sane or insane, intentional or unintentional, except it be committed while the member is under treatment for insanity, or has been judicially declared to be insane or by the hands of beneficiary dr beneficiaries named herein, except by accident, or by the hand of justice, or from disease resulting from his own vicious, intemperate or immoral habits, act op acts, or in consequence of the violation or attempted violation of the laws of the State' or the United States or any other province of nation, or if any of the statements or declarations in the application for membership and upon the faith of which this certificate was issued shall be found in any respects untrue, this certificate shall be null and void and of no effect; provided that in all such cases of death the amount of money contributed to the benefit fund by such member shall be returned and shall be paid to the beneficiary out of such fund in lieu of the benefit.”
The words which we have italicized above" are those which are here involved.
The final clause is, “This certificate is issued'and accepted subject to all the conditions on the back hereof, and subject to all the laws, rules and regulations of the Mutual Protective League now in force, or that may hereafter be enacted, and shall be null and void if said member does not comply with all of said conditions and with the laws of the Council to which the said member belongs.”
There is another provision allowing the member to change the beneficiary by written instrument.
In the application for the benefit certificate, which was put in evidence by the defendant, clause 5, as above set out, is embodied, except that where in the certificate itself the words are, “or by the hands of beneficiary or beneficiaries named herein, except by accident,” the words in the application are, “or by the hands of beneficiaries named herein, except by accident. ’ ’
By the constitution of the Order it is provided:
“The certificates hereafter to be issued shall be in such form as is or may hereafter be determined by the board of directors.”
This appears to have been in force at the time of the issuance of this benefit certificate, the certificate bearing date March 12, 1908.
The petition upon which the case was tried avers that the plaintiffs are the surviving brothers of Bertie Nicholson; that she died, on June 21, 1913, and that they constitute and are her only heirs at law; that at the time of her death Bertie Nicholson was a member of the defendant corporation, which, it is averred, was organized as such under the laws of the State of Illinois, and whose chief business, it is averred, is the insuring of the lives of its members for a pecuniary profit and consideration, for the benefit of its members and their beneficiaries. It is further averred that John W. Nicholson, a co-defendant, is the surviving husband of Bertie Nicholson and made a party defendant because he refused to join as plaintiff, and is a necessary party to' a complete determination of the issues involved. It is further averred that by the benefit certificate issued March 12, 1908, and filed as before stated, defendant promised to pay to John W. Nicholson and Howard G-. Nicholson, as beneficiaries, at the time of the death of Bertie Nicholson, while a member of the society, the sum of $500 each, or the total sum of $1000, upon satisfactory proof being made to the corporation of the death of Bertie Nicholson, and that it was further provided in the certificate, “that the said defendant corporation obliged and bound itself in the event of the death of said beneficiaries to pay said sum of $1000 to plaintiffs as legal heirs of said Bertie Nicholson.”
It is then averred that on June 20, 1913, John W. Nicholson, then being the husband of Bertie Nicholson, feloniously murdered her by pouring gasoline and kerosene over her body and setting fire to her in that condition, and that after be bad set fire to ber tbe other beneficiary named, to-wit, Howard Gr. Nicholson, the adopted son, in attempting to rescue bis mother, was himself burned to such an extent that he died a few minutes before the death of his mother. It is further set out in the petition that the motive of John W. Nicholson in murdering his wife was to collect the insurance money involved in this suit; that on June 27, 1913, an information was filed in' the circuit court of Audrain County, charging John W. Nicholson with the murder of his wife; that he voluntarily entered a place of guilty to the charge, a judgment of guilty of murder in the first degree was rendered against him by the circuit court, and he was sentenced to imprisonment in the State Penitentiary for the period of his natural life, from June 30, 1913, and that ever since the entry of the sentence and judgment, he has been incarcerated in the State Penitentiary under that life sentence.
Averring that Bertie Nicholson was a member in good standing in the defendant organization at the time of her death, it is averred that the plaintiffs, as substitute beneficiaries, furnished' the required proof of her death.
It is further averred in the petition that John W. Nicholson is civilly dead and that by his conduct and by his crime against his wife, and by his conviction of her murder, and by the judgment of life imprisonment, he forfeited all his rights as the beneficiary named, and on account of his being civilly dead, as aforesaid, plaintiffs were entitled to collect from the defendant, as beneficiaries, the sum of $1000, which sum, it is averred, the defendant, by its benefit certificate promised and obligated itself to pay plaintiffs as the legal heirs of Bertie Nicholson. Averring demand and refusal by the defendant to pay this amount, the petition prays the court to adjudicate that John W. Nicholson is entitled to no part of the $1000, and that by reason of the premises had forfeited all his right under it, either as original joint beneficiary, or as a survivor of Howard G-. Nicholson, and to adjudicate and hold that the plaintiffs are. entitled to all the right, title and interest set forth in the benefit certificate as belonging to the beneficiary, and they pray for judgment against the defendant in the sum of $1000, with interest at six per cent.
The administrator, appointed on the conviction and sentence of John W. Nicholson, answered, asking the court to determine and to adjudicate as to the proper party to receive the $1000, and that if the court found it due and payable to him as administrator, he prays for judgment to that effect.
The defendant corporation answered, after a general denial of all the allegations contained in the petition, except as thereafter expressly admitted, qualified or explained, as a further defense it sets up that it is a fraternal beneficiary society organized and incorporated under the' laws of the State of Illinois, relating to such societies, set out the Act of the G-eneral Assembly of Illinois referred to in full, and avers a compliance with the terms of the law; that since its organization and the issue of the benefit certificate it has fully complied with the Act of the State of Illinois, and avers that it now is and was at all the times herein mentioned, and set out in plaintiff’s amended petition, a fraternal beneficiary society, as defined by the statutes of the- State of Missouri, relating to such societies; that it was formed and carried on for the sole benefit of its members and their beneficiaries arid not for profit; that it has a lodge system, with ritualistic form of work and representative form of government, and makes provisions for the payment of benefits in case of death if its members; that the fund from which the payment of benefits is made, and the fund from which the expenses of the defendant society are defrayed, are derived from assessments for dues collected from the members; that the payment of death benefits is only made to the family, heirs, blood relatives, or to persons dependent on the member; “that prior to and at the time of the issuance of the certificate herein sued on, it had applied for permission to transact business as a fraternal benefiqiary society under the statutes of the State of Missouri, and that it has complied in all respects with the provisions and regulations contained in said Missouri Statutes relative to fraternal beneficiary societies organized in other States applying for permission to transact business in the State of Missouri, and that it now is and was at all times mentioned in plaintiffs’ amended petition duly authorized by the insurance department of the State of Missouri to transact its said business in the State of Missouri, as a fraternal beneficiary society under the provisions of” (what is now article 9, chapter 61, Revised Statutes 1909) “and that at all the times mentioned in the plaintiffs’ amended petition and in this answer defendant was doing business as a fraternal beneficiary society under and in compliance with the laws of the State of Missouri pertaining to fraternal beneficiary societies, and that the certificate herein sued on was issued and delivered to the said Bertie Nicholson by the defendant in its regular course of business in the State of Missouri and in strict compliance with the laws of the State of Missouri relating to fraternal beneficiary societies and associations; that at the time of its application for permission to transact business in the State of Missouri it duly designated a superintendent of insurance of the State of Missouri, as its agent and attorney in fact to accept service of process' under the statutes of this state, and has duly filed all reports required in and by said statute aforesaid, and that the service had on this defendant was had bv service on the superintendent of insurance as its agent and attorney in fact, as provided in said act.”
Averring that the supposed cause of action is founded on the contract entered into by and between Bertie Nicholson and the defendant, and by the certificate filed by the plaintiffs as an exhibit, and that the bylaws of the society provide that the application for membership shall he a part of' the contract by and between the members of the defendant society and govern all rights thereunder, the answer sets out the conditions of the benefit certificate as heretofore stated, setting out clause 5 in full, as well as other clauses which we have before referred to. It admits the conviction of John W. Nicholson for the murder of his wife and his plea of guilty and the judgment of imprisonment for life and that he is now confined in the Penitentiary, and it is set out “that by the terms of the benefit certificate issued by defendant the Mutual Protective League, and by reason of the terms and conditions of the said benefit certificate, that said Bertie Nicholson agreed that in the event that her death was caused by the beneficiary, John W. Nicholson, that there could and should be no recovery on said policy, but that the same became null and void. This defendant further avers that by reason of all the •aforesaid, that the said benefit certificate was rendered null and void and denies that any liability was due by reason thereof;” admits that during her lifetime Bertie Nicholson had contributed to the Mutual Protective League the sum of-and tenders the amount in court for the court to determine to whom'it is due.
A reply, denying all the new matter set out in the answer, avers that Clause 5, pleaded by the defendant as in the contract sued upon, as relieving the defendant of liability in whole or in part in the event of the insured Bertie Nicholson having been murdered by John W. Nicholson, her husband, one of the beneficiaries named, is against public policy, unreasonable, void, inoperative and illegal, and plaintiffs pray the court to so hold and pray for the judgment and relief asked.
The cause was tried before the court.
Plaintiffs introduced the benefit certificate in suit, and the death of Mrs. Nicholson being admitted, and it being admitted that she had been murdered by her husband under the circumstances stated, and that her adopted son had died .twenty or thirty minutes prior to her death, testimony was also introduced to the effect that plaintiffs were the sole heirs, brothers, of Mrs. Nicholson, she leaving no other of kin, plaintiffs rested.
•At the conclusion of plaintiffs’ evidence, defendant moved for a declaration of law to the effect that on the evidence plaintiffs could not recover. This was refused. .
On its part defendant read in evidence the deposition of its president (in which he testified, among other things, to the incorporation of the defendant under the laws of the State of Illinois, in 1897, as a fraternal beneficiary society; that it has continuously operated since that date until March 1, 1915, when the deposition was taken, and has been authorized and licensed each year as a fraternal beneficiary society, having a lodge system, ritualistic form of work and representative form of government, and has been operating in the State of Missouri, having had a license from this State to so operate ever since 1898, and having lodged with the superintendent of insurance of this State a certificate, as required by law1, appointing that superintendent its duly authorized agent to acknowledge and receive service of process for it in this State.
■ The by-laws of defendant were also introduced, as well as a copy of the constitution as it existed at the date of the death of Bertie Nicholson.
The president further testified that the funds of the association were received from the members by means of assessments levied and collected monthly; that a portion of the assessments go into the benefit fund for the purpose of paying death losses; that the amount paid into the benefit fund of the society from the assessments collected from the time Bertie Nicholson joined the society until the time of her death was $47.25.
At this point, the deposition of the president having been read, as above, this appears by the abstract:
“Plaintiffs concede that this defendant is licensed as a fraternal beneficiary association in Missouri,”
Defendant also offered in evidence the certificate of the superintendent of insurance of this State, of date November 11, 1898, showing his appointment by the company to act or receive service of process. The articles of incorporation ánd charter of the association were in evidence, as well as the certificate of the Secretary of State of Illinois of the incorporation of the defendant, and a like certificate of the superintendent of insurance of that State, dated April 15, 1897, showing defendant was a lawfully organized fraternal beneficiary society under the laws of the State of Illinois. Copies of the laws and constitution adopted from time to time were in evidence, and, while not set out in full, such parts as considered relevant are in the abstract. One of them was a provision allowing change of beneficiary. It also introduced a receipt for $47.25, dated April 2, 1914, signed by John Nicholson, this apparently being in repayment of dues, etc., paid by his wife. The statutes of the State of Illinois, under which the defendant was incorporated and organized, were in evidence, as also proofs of death furnished by plaintiffs as well as a certificate from the local council. Defendant also offered in evidence the application of Bertie Nicholson for the benefit certificate, which was read in evidence over plaintiffs’ objection.
The secretary of the local council of the order, located at Vandalia, this State, testified that Mrs. Nicholson was initiated in due form on March 5, 1908; that they had a ritual; that candidates take an obligation and are initiated and that the local council elects delegates to attend the grand lodge.
This was all the evidence in the case.
At its conclusion the defendant requested the court to state in writing its conclusion of facts separate from the conclusions of law. This the court did, fiinding, among other things, that the defendant, at the time of the issuance of the benefit certificate sued on and ever since, has been a corporation organized under the laws of the State of Illinois, citing them and the amendments thereto as set out in the answer of defendant, and that defendant “has been at all times, both prior to the issuance of the benefit certificate and ever since has been duly authorized and empowered to do business in the State of Illinois and Missouri as a fraternal beneficiary society, and has complied with the statutes of the State of Illinois and Missouri in reference to making annual reports that on the- day of March, 1908, Bertie Nicholson, of Vandalia, signed an application to become a member of the defendant, which application was in evidence in the case; that the defendant corporation accepted her as a member, and that she was duly received as such member and complied with all conditions of membership and cotemporaneously therewith, on March 12, 1908, defendant issued to her the benefit certificate sued on in the case, and the court sets this out.
The court further finds that a part of the benefit certificate, there are 8 paragraphs in fine print, all under the following heading:
‘This Benefit Certificate is Issued and Accepted Subject to the Following Agreements, Privileges hnd Conditions.”
The court then sets out paragraph 5 of the certificate, as before given, in full, and finds that Howard G-. Nicholson predeceased Bertie Nicholson; that she died about the-day of June, 1913, survived by her husband, John W. Nicholson; that previous to her death she made no change in the beneficiaries in the policy, and that by the terms of the benefit certificate John W. Nicholson became .the sole beneficiary thereunder and entitled to the total sum due thereunder, if not 'precluded from receiving said benefit by having murdered his wife, as hereinafter set forth, or if said benefit certificate was not rendered void by his acts on account of the 5th clause set forth. It also finds that Mrs. Bertie Nicholson came to her death by the hand of her husband, John "W. Nicholson, he having feloniously murdered her; that he subsequently pleaded guilty to the charge of murder and is at present incarcerated in the State Penitentiary under sentence of life imprisonment. “That by reason of having murdered his wife, said Bertie Nicholson, the said John W. Nicholson cannot recover at law the proceeds of said benefit certificate. That that portion of clause No. 5 in fine print, hut legible to read by persons of average eyesight, providing that ‘If the member holding this certificate shall die by the hands of beneficiary or beneficiaries, named therein,, except by accident’ is invalid, unreasonable and against public policy and is consequently void, so that insofar as the legal heirs of Bertie Nicholson are concerned, the said benefit certificate is still in force and effect, and is binding on the Mutual Protective League, and it is liable for the payment to the persons legally entitled thereto, to-wit, the plaintiffs in this ease, who constitute and are all the legal heirs of said Bertie Nicholson, the face of the benefit certificate with the interest- as provided by law.” Finding that the plaintiffs are the brothers of Bertie Nicholson and constitute all her heirs at law and come within the class of persons to whom the proceeds under the benefit certificate may be paid, the court finds plaintiffs are entitled to recover. It further finds that Bertie Nicholson paid • all the assessments required and that notice of her death was given as provided and that all the requirements of the benefit certificate relating to furnishing proof of death of Bertie Nicholson to defendant have been complied with by plaintiffs. Italics, as above, ours.
The defendant requested the court to make other declarations, one to the effect that section 5 of the benefit certificate sued on, is legal, valid and binding on the insured and is reasonable. These were refused.
Defendant excepted to the finding of facts filed by the court and to the refusal of the court to find as it requested. These exceptions were overruled.
Judgment went in favor of the defendants as against the administrator and against John W. Nicholson and against the defendant, the Mutual Protective League, and in favor of plaintiffs, Homer and Barton Griffith, for $1080.50, the amount of the certificate and interest. A motion for new trial was duly filed, as also one in arrest, both of which were overruled, and defendant Mutual Protective League excepting, has duly appealed.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
