Opinion
October 31, 1940.
1. APPEAL AND ERROR: Jurisdiction. It is the duty of the Supreme Court to determine its jurisdiction on appeal whether the question is raised or not.
2. INSURANCE: Jurisdiction. In an action on a beneficiary certificate by the widow of insured to recover $1000 plus $100 for a monument, where the certificate provided that it was subject to the benefit society by-laws subsequently adopted by revision of the laws and a section of such revision contained a provision that after the insured reached a certain age his pay assessments would increase and if he continued to pay at the old rate he would relinquish certain benefits and in addition deductions from the face of the policy, such amounts as would meet and discharge the deficiencies created by continuing to pay at the old rate, and where such section was held valid by the Supreme Court of Nebraska, the domicile state of the defendant, the full faith and credit clause of the United States Constitution gives the Supreme Court jurisdiction of the appeal.
3. INSURANCE: Benefit Society. Where plaintiff, widow of insured, recovered judgment on a benefit certificate issued by the fraternity for $1000, recovered the face of the certificate $1000 and $100 for a monument, under the facts proven and by-laws governing the case, plaintiff was entitled only to the amount defendant offered to pay, $519.24.
Appeal from Jackson Circuit Court. — Hon. Allen C. Southern, Judge.
REVERSED AND REMANDED ( with directions).
Rainey T. Wells and Harding, Murphy Tucker for appellants.
(1) The trial court erred under Article IV, Section 1 of the Constitution of the United States in applying the law of Missouri instead of the law of Nebraska, under which appellant was created and to which it owes its existence, in determining the controversy here presented, notwithstanding the fact that the beneficiary certificate here involved was issued and accepted and the dues and assessments required to keep it in force were paid in Missouri. Sovereign Camp, W.O.W., v. Bolin, 59 Sup. Ct. 35; Modern Woodmen of America v. Mixer, 267 U.S. 544, 45 Sup. Ct. 389, 69 L.Ed. 783; Hartford Life Ins. Co. v. Barber, 245 U.S. 146, 38 Sup. Ct. 54, 62 L.Ed. 208; Hartford Life Ins. Co. v. Ibs, 237 U.S. 662, 35 Sup. Ct. 692, 59 L.Ed. 1165; Supreme Council of the Royal Arcanum v. Green, 237 U.S. 531, 59 L.Ed. 1089; Clark v. Security Benefit Assn., 121 S.W.2d 148; Robertson v. Security Benefit Assn., 114 S.W.2d 1009; Rechow v. Bankers Life Ins. Co., 335 Mo. 668, 73 S.D.2d 794; Garretson v. Sov. Camp, W.O.W., 210 Mo. App. 539, 243 S.W. 257. (2) The trial court erred under Article IV, Section 1 of the Constitution of the United States in refusing to accord full faith and credit to appellant's charter granted under the general laws of Nebraska as such charter and the laws under which it was granted have been interpreted by the Supreme Court of Nebraska in the case of Fowler et al. v. Sovereign Camp of the Woodmen of the World, 106 Neb. 192, 183 N.W. 550. Sovereign Camp, W.O.W. v. Bolin, 59 Sup. Ct. 35; Supreme Council of the Royal Arcanum v. Green, 237 U.S. 531, 35 Sup. Ct., 724, 59 L.Ed. 1089; Hartford Life Ins. Co. v. Barber, 245 U.S. 146, 38 Sup. Ct. 54, 62 L.Ed. 208. (3) The trial court erred under Article IV, Section 1 of the Constitution of the United States in refusing to hold that the decision and judgment of the Supreme Court of Nebraska in the case of Fowler et al. v. Sovereign Camp of the Woodmen of the World, supra, having been rendered in a suit brought for the benefit of a class to which Abraham D. Achtenberg belonged, and being a final adjudication of a controversy as to which appellant stood in judgment for its members, is res adjudicata and binding upon respondent as to every issue in the present case concerning (a) the validity of Section 60 of the 1919 Constitution, Laws and By-Laws; and (b) the applicability of the aforesaid Section 60 to the instant beneficiary certificate.
Achtenberg Achtenberg for respondent.
(1) Appellant's assignments of errors 5 and 6 deal with the issues in Count II which have been withdrawn through the filing of a remittitur by respondent. (2) Appellant's assignments of errors 1, 2, 3, 4 and 7 find no support in the record. The construction of Article IV, Section 1, of the Constitution of the United States is not involved in this cause, because: (a) The record does not support appellant's contention that the trial court did not give full faith and credit to the case of Fowler v. Sovereign Camp of the Woodmen of the World, 102 Neb. 562, and (b) The Fowler case, supra, is not a final adjudication of the issues in the case at bar. The sole issue in the Fowler case with the legality of Section 60 of the Amended By-laws of 1919, whereas the sole issue in the case at bar is whether or not said Section 60 is applicable to the certificate sued on. In order to constitute a former adjudication, it must affirmatively appear that the matter in dispute was put in issue and tried. Drainage District v. Turney, 235 Mo. 94, 138 S.W. 12; Deck v. Wofford, 282 Mo. 564, 222 S.W. 443; Loud v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629; Ridgley v. Stillwell, 27 Mo. 132; Dennis v. Grand River Drain. Dist., 118 S.W.2d 113; Kelly v. Cape Girardeau, 260 S.W. 801; Barkhoefer v. Barkhoefer, 93 Mo. App. 373; Johnson v. Johnson, 56 S.W.2d 1069. Appellant, not having pleaded that the applicability of said Section 60 to the certificate sued on was adjudicated in the Fowler case, cannot raise it now. Johnson v. Johnson, 56 S.W.2d 1069; Rutherford v. Farrar, 118 S.W.2d 83. (3) This cause having been tried by the court, without a jury, who rendered a general judgment and no finding of facts nor declarations of law having been asked or given, the presumption is that the court decided the case according to the correct theory of the law and judgment must be affirmed if there is any evidence to support it. Perrin v. Johnson, 124 S.W.2d 551; Weisenborn v. Rutledge, 121 S.W.2d 309; Dennis v. Grand River Drain. Dist., 118 S.W.2d 113; Cave v. Mo. Ins. Co., 102 930 S.W.2d 755; Manufacturers Finance Trust v. Collins, 58 S.W.2d 1004; School Dist. of Independence ex rel. Whalen v. Wilcox, 58 S.W.2d 1009; Chuning v. Hinkle, 49 S.W.2d 257; Underwood v. Oregon County, 8 S.W.2d 597. (4) Appellant's assignment of errors and points and authorities do not challenge the sufficiency of the evidence to support the judgment. Absent such assignment, appellate courts do not review the evidence. Massey-Harris Co. v. Rich, 122 S.W.2d 868; Powell v. Brosnahan, 115 S.W.2d 148; State ex rel. v. Trimble, 39 S.W.2d 375; Gottschalk v. Wells, 274 S.W. 399; Flack v. Ball, 240 S.W. 469; Hiemenz v. Harper, 204 S.W. 723; Kenage v. Kenage, 3 S.W.2d 1041. Judgment is for the right party. Neff v. Sov. Camp, W.O.W., 226 Mo. App. 899, 48 S.W.2d 564; Baker v. Sov. Camp, W.O.W., 116 S.W.2d 513.
The petition in this cause was in two counts. The first was to recover on a beneficiary certificate or policy for $1,000, plus $100 for monument. Plaintiff is the widow of the insured and is the named beneficiary in the policy. There was a provision in the policy that it would be paid up in 25 years, and the second count was to recover back monthly assessments ($1.38 each) paid subsequent to September 16, 1922, the expiration date of the 25 years. The claim based on the second count was set off to plaintiff by order of the probate court. A jury was waived and the trial court found for plaintiff on both counts, and appeal was taken to the Kansas City Court of Appeals. Plaintiff filed in the Court of Appeals a full remittitur as to the judgment on count No. 2, and that count passed out of the case.
On motion of defendant the Court of Appeals made an order transferring the cause to this court on the theory that the construction of the full faith and credit clause of the Federal Constitution, Sec. 1, Art. 4, is involved.
Plaintiff contended that the construction of the Federal Constitution is not involved, and that jurisdiction of the appeal was in the Court of Appeals and resisted defendant's motion to transfer. It is our duty to determine jurisdiction, when the question occurs, whether raised or not by the parties. [Perkins v. Burks et al. (Mo.), 61 S.W.2d 756-7, and cases there cited.]
The policy was issued September 16, 1897, to Abraham D. Achtenberg, who was a member of a lodge or camp of defendant in St. Joseph, Missouri, and the policy was there applied for and there delivered. It was payable upon the death of the insured, but there was stamped upon its face, "payments to cease after 25 years." The paid up provision was by authority of a by-law of defendant adopted in 1895, and as amended in March, 1897, provided, among other things, that thereafter one, over 30 and under 40 years old, joining the defendant order, would, if he paid his dues, have his policy paid up at the end of 25 years from date of issue. Such by-law was held, by the Supreme Court of defendant's domicil State (Nebraska) to be ultra vires and void. [Trapp et al. v. Sov. Camp, W.O.W., 102 Neb. 562, 168 N.W. 191.] Had there been no remittitur as to the judgment based on count No. 2, there would be no question but that jurisdiction of the appeal would be in this court (Sov. Camp, W.O.W., v. Bolin, 305 U.S. 66, 59 Sup. Ct. 35, 83 L.Ed. 45, 119 A.L.R. 478; Bolin v. Sov. Camp, W.O.W., 344 Mo. 714, 127 S.W.2d 718; McDaniel et al. v. Sov. Camp, W.O.W. (Mo.), 139 S.W.2d 993, l.c. 994, and cases there cited), but has this court jurisdiction of the appeal from the judgment on count No. 1?
On its face, the present policy provided for the payment to the beneficiary, upon insured's death, of $1,000 and further provided for the payment of $100 for the placing of a monument at his grave. Insured died February 16, 1937, and was, at the time of his death, in good standing in defendant order. Proofs of death were duly made, and demand made for the face amount of the policy, plus the $100 for monument. Defendant refused to pay as demanded, but offered (did not tender) to pay $519.24, and the offer was refused.
When the policy was issued the rate thereon was 75 cents per month. Thereafter, the monthly rate was increased from time to time until it was $1.38 in 1919. Effective December 31, 1919, Sec. 60 of defendant's amended by-laws provided for a rate based upon the attained age of its members on January 1, 1920. On that date, insured's age was 62, and, under the new rate, his assessment for all benefits under his policy was $61.54 annually, or $5.33 monthly. However, in Sec. 60, there was a provision whereby a member could continue to pay his then rate, and, if he so continued, he relinquished his right to old age disability benefits and the monument feature. And, in addition to these relinquishments, there was deducted from the face amount of the policy, such an amount as would "meet and discharge the deficiency created by continuing to pay" the then rate. And it was further provided in Sec. 60 that the amount deducted from the face of the policy should be a lien thereon as of December 31, 1919, and this lien was to bear interest at 4% annually, and if the interest was not paid, then the lien increased at 5% compounded annually. The insured continued to pay his then rate of $1.38 per month, and his policy, thereafter, was considered by defendant as not providing for old age disability and monument benefits, and a lien of $220 was placed against it. The insured did not pay the interest on the lien, and at the time of his death, the amount due under the policy was $519.24, the amount offered, provided Sec. 60 is applicable to the policy.
Section 60, effective December 31, 1919, as stated, provided that "every member admitted prior to January 1, 1920, in good standing, holding a combined benefit certificate (italics ours) may elect to continue" to pay his then rate, etc. The section goes on to provide as to the lien and the relinquishments, supra. Combined benefit certificates came into existence by the revised by-laws of 1919. Prior to that revision, there was no reference in any certificate or by-law to such certificates. Under such certificates, a member, if in good standing at time of his death, was entitled to a death and monument benefit, or if the condition arose during life, he was entitled to an annual old age disability benefit of one-tenth of the face of the policy after reaching 70, if totally and permanently disabled.
While there was no mention or reference in the policy to old age benefits, it was provided in the policy that it was subject to the by-laws of defendant then existing or subsequently adopted, and defendant contends that insured's policy was, therefore, a combined benefit certificate, and subject to the provisions of Sec. 60, while plaintiff contends that the policy is not a combined benefit certificate and that Sec. 60 is not applicable to it. In other words, plaintiff says that the only question is whether Sec. 60 is applicable, and that such question could not and does not involve the validity of Sec. 60, and that therefore, there is no question on the full faith and credit clause of the Federal Constitution, and that jurisdiction of the appeal is in the Court of Appeals.
Fowler et al. v. Sov. Camp, W.O.W., 106 Neb. 192, 183 N.W. 550, was a class suit, in which the Supreme Court of Nebraska held that Sec. 60, of defendant's by-laws was valid, and if the trial court's judgment, in the present case, on count No. 1, was on the theory that Sec. 60 was not effective in this State, then full faith and credit would be denied to the Nebraska decision in the Fowler case and jurisdiction of this appeal would be here for the same reason as given in Sov. Camp, W.O.W., v. Bolin, 305 U.S. 66, supra. [See also Rechow v. Bankers' Life Co., 335 Mo. 668, 73 S.W.2d 794; Robertson v. Security Benefit Assn., 342 Mo. 284, 114 S.W.2d 1009; Reece v. Security Benefit Assn., 344 Mo. 29, 124 S.W.2d 1146; Baker v. Sov. Camp, W.O.W., 344 Mo. 230, 125 S.W.2d 849; Clark v. Security Benefit Assn., 343 Mo. 263, 121 S.W.2d 148.]
Plaintiff is not overly explicit as to why Sec. 60 is not applicable, but says in the brief that the Kansas City Court of Appeals, in Neff v. Sov. Camp, W.O.W., 226 Mo. App. 899, 48 S.W.2d 564, and in Baker v. Sov. Camp, W.O.W., 233 Mo. App. 13, 116 S.W.2d 513, "held certificates identical (with the present certificate) except as to dates, names, and amounts, with the instant certificate, not to be combined benefit certificates, and not subject to the provisions of Sec. 60." And then it is stated in the brief that plaintiff "is aware that the Baker case (judgment) has been reversed," but it is stated that "the reversal was not made upon this issue," that is, as we understand, on the question as to whether Sec. 60 is applicable to a policy like the present one.
There is no course of reasoning by which the conclusion can be reached that Sec. 60 is not applicable to the present policy, except the course, or a similar one, followed in the Neff and Baker cases in the Court of Appeals, and the course there followed was to the effect that Sec. was not effective in this State as to policies like the one at bar, and which course as held in the Baker case in this court ( 344 Mo. 230, 125 S.W.2d 849) denied full faith and credit to the decision by the Supreme Court of Nebraska in the Fowler case, supra.
We think that jurisdiction of the appeal in the present case is in this court.
There is no occasion to enter upon an extended consideration of the merits. The field has been repeatedly covered, and it is now definitely settled that there can be no recovery, under the facts here, for more than defendant offered to pay. [Sov. Camp, W.O.W., v. Bolin, 305 U.S. 66, 59 Sup. Ct. 35, 83 L.E. 45, 119 A.L.R. 478; Bolin v. Sov. Camp, W.O.W., 344 Mo. 714, 127 S.W.2d 718; Baker v. Sov. Camp, W.O.W., 344 Mo. 230, 125 S.W.2d 849; Robertson v. Security Benefit Assn., 342 Mo. 284, 114 S.W.2d 1009; Reece v. Security Benefit Assn., 344 Mo. 29, 124 S.W.2d 1146.] The judgment on the first count of the petition should be reversed and the cause remanded with direction to enter judgment, on such count, for plaintiff for $519.24, with interest at 6% thereon from March 22, 1937, date of proofs of death, and it is so ordered. Hyde and Dalton, CC., concur.
The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur.