author: BOND, J.

text:
    WILLIAM CASSIN v. JAMES W. LUSK et al., Receivers of ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellants.
    Division One,
    April 7, 1919.
    1. NEGLIGENCE: Defective Tool: Knowledge of Company. Where the evidence is sufficient to afford a basis for a knowledge on the part of the railroad foreman of the defective condition of the tool with which the workmen was required to perform his work, the jury are entitled to consider it in determining the cause of the workman’s injuries.
    2; -: Interstate Commerce: Filling Water-Cooler of Passenger Train. Evidence that plaintiff’s duties consisted in filling a water-cooler of a passenger coach for use in interstate commerce, which arrived .the evening before after a similar use and was left overnight to he prepared for an interstate journey the following morning, said coach being run daily between Lawton, Oklahoma, and Quanah, Texas, and was merely stopped overnight at Lawton to he cleaned and put in order for a continuance of an interstate journey next day, tends to show that the coach was permanently appropriated for interstate commerce, and tends to prove that he was engaged in interstate commerce at the time he was filling the water-cooler and the hose broke, which caused his injury. And such being the evidence the trial court did not err in overruling a demurrer to the evidence in the case brought under the Federal Employers’ Liability Act.

      3. -: -: Submitted in Separate Instruction. If the instruction given to cover the whole case submits the issue of whether or not defendant was engaged in interstate commerce at the time plaintiff was injured, it is not necessary that said issue be also submitted in the instruction intended solely to prescribe the apportionment of damages in case the jury find that both parties were negligent. Especially should this be the rule if the instruction covering the whole case in terms refers the jury to all other instructions given.
    4. -: Federal Employers’ Liability Act: Reduction of Damages: Instruction: Harmless Error. ' In an action brought under the Federal Employers’ Liability Act, an instruction defining the duty of the jury in case the evidence shows negligence on the part of the plaintiff as well as the defendant must contain terms or language requiring the jury to diminish the whole amount of damages allowable by such a sum as represents the proportional negligence attributable to the plaintiff; and an instruction which tells the jury that, in such case, they “are only warranted in reducing the amount of damages to be awarded to plaintiff in the proportion that his negligence bears to the combined negligence of himself and the defendants” is, by the use of the words “only warranted,” incorrect. But It is not in this case reversible error, because the record discloses no facts or circumstances which would have warranted the jury in finding that plaintiff was guilty of evidence directly contributing to his injury.
    5. -: -: Contributory Negligence. It is not the duty of the servant to keep the tool furnished him by his master in a reasonably safe condition. The law imposes that duty on the employer.
    6. -: -: -: Confined to Fleas. Defendant cannot rely on any theory of contributory negligence beyond the averments contained in its answer, unless negligence is shown ás a matter of law by testimony given for plaintiff in submitting his case.
    7. -: Evidence: Defective Tool: Details of Bad Condition. If the jury are required by plaintiff’s instruction to find any bad condition in the defective hose used by him in filling the coach water-coolers not warranted by the evidence, he simply shoulders an additional burden, which does not harm defendant. .
    8. -: -: Custom: Prudent Method. A railroad company is not compelled to adopt any specific method for the purpose of connecting two pieces of hose used in filling water-coolers on its passenger coaches other than one that would result in making; the hose reasonably safe, but evidence for plaintiff that the common custom was to use clamps cannot be said to be without evidenciary force, since the very existence of the general custom consists with the idea that prudent men have always followed.

      Appeal from Dade Circuit Court. — Hon. B. G. Thurman, Judge.
    Affirmed.

      W. F. Evans, Ben M. Neale, and Mann, Todd & Mcmn for appellants.
    (1) The court erred in refusing to give the instruction requested by defendants in the nature . of a demurrer to the evidence, (a) Because there was( no evidence that defendants had knowledge of any defect in the hose; nor was there any evidence that a defect had .existed a sufficient time that constructive knowledge could he implied to defendants, and therefore the evidence failed to show any of the facts necessary to constitute actionable negligence, and for that reason the demurrer should have been given. Crane v. Railroad, 87 Mo. 595; Wojtylak v. Coal Co., 188 Mo. 281; Glasscock v. Dry Goods Co., 106 Mo. App. 657; Rowden v.. Daniel, 151 Mo. App. 15; Wilks v. Railroad, 159 Mo. App. 722. The law presumes that the fastening of the hose with the “copper” wire noticed by plaintiff three or four days before he was injured and again the night before he was injured, was applied by some servant of defendants and that it was properly and securely applied. Not only was there an absence of any evidence to overcome this presumption, but plaintiff testified that each time he noticed the “copper” wire, apparently^ it was all right. Glasscock v. Dry Goods Co., 106 Mo. App. 657; Hartwell v. Parks, 240 Mo. 537; King v. Ringling, 145 Mo. App. 294; Franklin v. Railroad, 97 Mo. App. 482; McCallister v. Ross, 155 Mo. 1. c. 94. (b) Because although the petition alleges that plaintiff was engaged in interstate commerce at the time he was injured, the evidence shows he was not so engaged. Minneapolis and St. L. R. Co. v. Winters, 242 TJ. S. 353, 61 L. Ed. 358. (2) The court erred in giving Instruction Number Five at the request of plaintiff, (a) Because said instruction is erroneous in that it assumes without leaving it to the determination of the jury that plaintiff was engaged in interstate commerce. The instruction is vitally defective because even if it should be held that the evidence, if true, would justify a holding that plaintiff was engaged in interstate commerce when injured, the instruction usurps the province of the jury and in effect declares that plaintiff’s evidence is true and must be believed. McRey-nolds v. Railroad, 115 Mo. App. 680; Johnson v. Gray-son, 230 Mo. 394; Hunter v. Wethington, 205 .Mo. 293; Julian v. K. C. Granite & M. Co., 187 S. W. 585; Dalton v. Poplar Bluff, 173 Mo. 46; Gannon v. Gas Co., 145 Mo. 515; Seehornv. Bank, 148 Mo. 265; Gooden v. Modern Woodmen, 194 Mo. App. 668; Rasch v. Bankers Life Co., 201 S. W. 924:. (b) Because said instruction does not require or command the jury in the event they find plaintiff to have been guilty of negligence directly contributing to his injury to deduct from the total amount of damages sustained by plaintiff such sum as equals the proportion which they may find the contributory neglig’ence of plaintiff bears to the whole causal negligence in the case; it merely tells the jury that they are only warranted in reducing the damages. Crecelius v. C., M. & St. P. Ry., 205 S. W. 186. (3) The court erred in giving instruction Number 2 at request of plaintiff because said instruction is broader than the evidence and includes a specification of negligence not authorized by the evidence, to-wiU There was no evidence whatever that the “fiber and fabric of the hose was defective and rotten,” and therefore the inclusion of this is the instruction was erroneous. Begonia v. Railroad, 224 Mo. 589; Black v. Railroad, 217 Mo. 685; Schumaker v. Breweries'Co., 247 Mo. 162; State ex rel. v. Ellison, 195 S. W. 724.

      F. P. Sizer for respondent.
    (1) The evidence is overwhelming in all the essential elements of actionable negligence, because three witnesses testified that defendants’ foreman fiad knowledge of tfie defective condition of tfie fióse. In fact, it is in evidence by all tfie witnesses that “old” defective end of tfie fióse was actually furnished and installed by tfie defendants’ foreman; and that tfie fifteen-foot end of tfie hose which came off of tfie nipple was “cut out of tfie old hose” and spliced to tfie new hose; and tfie two witnesses besides plaintiff were employees of tfie defendants. Their testimony is conclusive that tfie defendants did have knowledge of the'defective condition of the hose, (a) Tfie master must not only furnish reasonably safe tools for fiis servants, but must inspect those tools from time to time, to see that they are kept in a reasonable safe condition. Ogan v. Railroad, 142 Mo. App. 252; Gutfiridge v. Mo. Pac. Ry., 105 Mo. 528; Reader v. Lime Có., 129 Mo App. 107; Bible v. Frisco Railroad, 169 Mo. App. 519. (b) There is a difference in tfie law as tó tfie duty of tfie servant, with reference to inspection, and that of tfie master. Tfie duty of tfie servant in this respect is of a negative and passive character, as compared with tfie positive and continuing duty of tfie master. Bible v. Frisco Railroad, 169 Mo. App. 531; Gibson v. Bridge Co., 112 Mo. App. 594; Rowden v. Mining Co., 136 Mo. 385; Coin v. Loonge Co., 222 Mo. 505. (2) Where a servant is working for an interstate road like tfie Frisco, and an employee is engaged in preparing cars or engines or instrumentalities to go out on interstate runs, or directly connected with such preparation, as was tfie plaintiff, then the servant is also field to be engaged in interstate commerce. North Carolina Railroad v. Zachary, 232 U. S. 248, 58 L. Ed. ' 591; Hawkins v. Frisco, 189 Mo. App. 201; Frisco v. Seale, 229 IT. S. 156,- 57 L. Ed. 1129; Pedersen v. Railroad, 229 U. S. 146, 57 L. Ed. 1125; Law v. Ill. Cen., 126' C. C. A. 27; Montgomery v. Ry., 64 Ore. 597; Horton v. Railroad, 72 Wash. 503; Darr v. B. & O. Railroad, 197 Fed. 665; Ill. Railroad v. Nelson, 203 Fed. 956; Neil v. Railroad, 125 Pac. 331; New York Cen. v. Carr, 238 H. S. 260, 59 L. Ed. 1298; Freeman v. Powell, 144 S. W. 1033; Seaboard Air Line v. Padgett, 236 U. S. 668, 59 L. Ed. 777; Cross v. Railroad, 191 Mo. App. 202; Railroad v. Peters, 69 So. 611. (3) Complaint is made that Instruction 5 assumes that plaintiff was engaged in interstate commerce without leaving that question for the jury. In answer to this contention, we call the court’s attention to the fact that in Instruction 1 this question was submitted to the jury along with other essential facts. It is fundamental that the instructions should be. considered as a whole, and Instruction 1 for plaintiff should be considered with Instruction 5 and other instructions given on behalf of plaintiff. Hoover v. Coal Co., 160 Mo. App. 330; Michael v. Railroad, 161 Mo. App. 64; Wilson v. Railroad, 169 Mo App. 418; Jackson v. W. U. T. E., 174 Mo. App. 82; Pendergrass v. Railroad, 179 Mo. App. 536. (4) The court did not err in permitting plaintiff and Frazier to testify to the fact that it had been customary at the Frisco and at other places to splice hose with clamp and screw fastenings. Evidence of custom has probative force in proving negligence. Gordon v. Railroad, 222 Mo. 536; Brunks v. Tel. Co., 115 Mo. App. 36; O ’Melia v. Railroad, 115 Mo. 205; White v. Railroad, 84 Mo. App. 411; Spencer v. Briener, 126 Mo. App. 102. While the master does not have to adopt the safest way to do his work, yet he must adopt a reasonably safe way, and the evidence of custom becomes material as to what is a reasonably safe method or way of doing the work. Jarrel v. Coal Co., 154 Mo. App. 558; Mack v. Railroad, 123 Mo. App. 531; Spencer v. Briener, 126 Mo. App. 102; Schroeder v. Railroad, 108 Mo. 328 ; Halliburton v. Railroad, 58 Mo. .App. 27.
   BOND, J.

Action to recover damages for personal injuries. Plaintiff, William Cassin, a man forty-five years of age, was employed by the receivers of the Frisco Railroad Company, as a coach cleaner.. On January 23, 1915, at Lawton, Oklahoma, while he was filling one of the water-coolers of a passenger coach by means of a hose which he had carried to the top of the coach, the hose parted and he was thrown to the ground and a freight train' passing on a parallel track ran over one of his feet, crushing it so that it had to he amputated.

The petition was in two courts, the first pleading the Federal Employers’ Liability Act and the second based on common law negligence. On the trial the court at defendants’ request instructed the jury that no recovery could he had on the latter count. The case originated in Lawrence County, hut was sent to Dade County on a change of venue.

Negligence was charged for failure to exercise ordinary care to furnish plaintiff with a reasonably safe hose with which to work; and failure to inspect and see that the hose with which plaintiff was supposed to work was in such repair as to make it á safe appliance.

The answer was a general denial, coupled with the defense of contributory negligence and assumption of risk.

The plaintiff replied, denying negligence on his part, or that his knowledge of the risk in using said hose was equal to or greater than the knowledge of the defendants.

The evidence tended to show that it was plaintiff’s usual duty to fill water-coolers in certain passenger coaches which were stored overnight at Lawton, preparatory to a day trip to and return from Quanah, Texas. A water-cooler is located at each end of such' coaches, and is filled by a hose which is carried to, the top of the coach and inserted in the cooler. The hose used in this instance was sixty-five feet in length and consisted of new hose, fifty feet long, which was. spliced to an old piece fifteen feet long by means of an eight-inch iron pipe. When this splicing was originally made, the two pieces of hose fitted the pipe closely, but in time, owing to hard usage and the fact that the hose was dragged about, it became loose and fell apart. The condition of the hose was reported to the foreman, and he in tnrn had a car inspector repair it by wrapping a piece of wire aronnd the two pieces where they came together over the piece of.iron pipe and twisting the two ends of wire together. ’It appears that this splicing was not very successful and often allowed the hose to break apart. It was frequently reported to the foreman, and the car inspector continued to repair it with wire, as stated above. On one occasion when it was found that the hose had broken again, the car inspector gave his pliers to plaintiff and told him that he and Frazier (the man who turned on the hydrant when plaintiff reached the top of the coaches) could fix it themselves.

On the night of the accident plaintiff, as usual, went on top of the coach by means of a ladder, dragging the hose behind him. He filled one cooler and started toward the other end of the coach to fill the other, when the hose broke apart, causing him to lose his balance and fall to the ground, and" as a result was run over by a moving freight train and injured.

The coach on which plaintiff was working was one of the coaches of a passenger train which was used every day in interstate commerce between Lawton, Oklahoma, and Quanah, Texas. The train left Lawton at seven o ’clock in the morning, and returned from Quanah at four-fifty in the afternoon, when the coaches were run on a storage track and left to be cleaned for the next day’s run.

After the accident plaintiff was taken to a hospital at Lawton, where his foot was amputated, and later was taken to a hospital at Springfield, Missouri, where it was found that a second amputation of the leg was necessary.

The jury returned a verdict for plaintiff and assessed his damages .at the sum of twelve thousand dollars.

Prom a judgment of this amount defendants appealed.

I. The evidence recited above afforded a sufficient basis for a legitimate inference of knowledge on the part of defendants’ foreman of the defective condition of the hose. Hence the jury were entitled to consider it in determining the cause of the injuries to plaintiff.

The evidence tended to prove that plaintiff was engaged in interstate commerce, .for bis duties pertained to the preparation of a coach for use the nest morning in interstate commerce, said coach having arrived the evening before after a similar use and was left overnight to he prepared for a journey in interstate commerce the following morning. This evidence tended to show that the coach in question was permanently appropriated for interstate commerce and that it was merely stopped overnight to be cleaned and put in order for a continuance of an interstate-commerce journey nest day. It, therefore, did not fall within the rule stated by the Supreme Court of the United States in Minneapolis, etc., Ry. v. Winters, 242 U. S. 353, where the facts did not show that the engine being repaired by the plaintiff when he was injured “was permanently engaged” in interstate commerce. On the contrary it was held to be subject to local use. Said the court: “An engine as such is not permanently devoted to any kind, of traffic and it' does not appear that this engine was destined especially to anything more definite than such business as it might be needed for. It was not interrupted in an interstate haul to be repaired and go on. It simply had finished some interstate business and had not yet begun upon any other. Its next work, so far as appears, might be interstate or confined to Iowa, as it should happen.” [242 U. S. l. c. 356.]

In the present case the coach in question was exclusively used in interstate business and was only stopped for preparation for that use and hence it fell within the doctrine announced by the United States. Supreme Court in N. Y. Cent. Railroad v. Carr, 238 U. S. 260; N. C., etc., Ry. v. Zachary, 232 U. S. 248; Pedersen v. Railroad, 229 U. S. 146, and other cases cited in respondent’s brief. In the first of these cases the Supreme Court of the United States, speaking as to this point, said:

“The scope of the statute is so broad that it covers a vast field about which there can he no discussion. But owing to the fact that, during the 'same day, railroad employees often and rapidly pass from one class of employment to another, the courts are constantly called upon to decide those close questions where it is difficult to define the line which divides state from interstate business. The matter is not to be decided by considering the physical position of the employee at the moment of injury. If he is hurt in the course of his employment while going to a car to perform an interstate duty, or if he is injured while preparing an engine for an interstate trip, he is entitled to the benefits of the Federal Act, although the accident occurred prior to the actual coupling of the engine to the interstate cars.” (Italics ours.) [238 U. S. 262.]

Again, said the same court on this subject: “It is argued that because, so far. as appears, deceased had not previously participated in any movement of interstate freight, and the through cars had not as yet been attached to his engine, his employment in interstate commerce was still in the future. It seems to us, however, that his acts in inspecting, oiling, firing and preparing his engine for the trip to Selma, were acts performed as a part of interstate commerce, and the circumstance that the interstate freight cars had not as yet been coupled up is legally insignificant. See Pedersen v. Deleware etc. Ry., 229 U. S. 146, 151.” [232 U. S. l. c. 260.]

The trial court did not, therefore, err in overruling respondent’s demurrer to the evidence.

II. The remaining assignments of error relate to the giving and refusing óf instructions and the admission of testimony. Taking these in order: It is insisted for appellants that the conrt erred in giving Instruction No. 5, in that said instruction contained no formal submission of the issue of whether or not plaintiff was engaged in interstate commerce at the ^ine was injured. While that is so, still it must be borne in mind that the instruction in question was not one which covered the entire case, but was one relating only to comparative negligence of the parties, and concluded, to-wit: “And even though you may believe from the evidence that plaintiff was guilty of negligence which directly contributed to his injuries, yet if you further find that the defendants were also guilty of negligence which directly contributed to plaintiff’s injuries, as set forth in the other instructions herein, then you are only warranted in reducing the amount of damages to be awarded to plaintiff in proportion as his negligence bears to the combined negligence of himself and the defendants.”

In other words, it is apparent that the portion of the instruction above quoted and complained of was intended solely to prescribe the duty of the jury to make a comparison in case they should find that both parties were guilty of negligence and reduce the damages recoverable by plaintiff according to the rule fixed by the Federal Employers’ Liability Act.

However, the first instruction given for plaintiff did cover the entire case and did submit to the jury every phase of the evidence under the issues raised by the pleadings, and among other things, “that the plaintiff, as well as the defendants, at the time was engaged in interstate commerce between the different states,” and “that the parting of said hose and the consequent injury to plaintiff was due to the negligence of defendants, their agents, servants or employees in whole or in part, in the particulars as set forth in the next succeeding instructions and the other instructions herein” as prerequisites to a verdict for the plaintiff on the first count of the petition. It is the established rule in this State, that an instruction which purports to cover the entire case and direct a verdict, must contain within itself a submission of all the issues upon every phase of the evidence, and any failure on the part of the first instruction in that respect would have been reversible error. But such is not the rule applicable to instructions directed only to particular phases of the evidence or' particular issues. Instructions of the latter kinds are correctible or supplementable by any other instructions given in the case, all of which must be considered together by the jury in arriving at their verdict. We do not think, therefore, that the omission to resubmit to the jury the issue as to whether or not. the parties were engaged in interstate commerce was a reversible error in view of the complete submission of that issue in the. first instruction for plaintiff, and especially in view of the fact that said instruction in terms, referred the jury to all other instructions which might be given in the case,- thus telling them that they should be guided by the instructions as a totality. We do not think in these circumstances and in view of the fact that the uneontradicted evidence disclosed a state of facts which proved that plaintiff was engaged in interstate commerce, that the jury could have been misled in their consideration of this case.

It is, however, contended that Instruction No. 5 was faulty in another respect. This complaint is, that the instruction in question, 'by the use of the terms “only warranted,” failed to inform the jury that it was their bounden duty to exclude from the recovery, in case both parties were negligent, ,“a proportional part of the damages corresponding to the employee’s contribution to the total negligence.” [Seaboard Air Line v. Tilghman, 237 U. S. l. c. 501; Blankenbaker v. Railroad, 187 S. W. 842; Crecelius v. Railroad, 205 S. W. 185.] In the two last cases this court has followed the paramount authority of the Supreme Court of the United States in construing the Federal Employers’ Liability Act, and has held that an instruction defining the duty of the jury in cases where the evidence shows negligence on the part of the plaintiff as well as of the defendant, must contain terms or language requiring the jury to diminish the whole amount of damages allowable by such a sum as represents the proportional negligence attributable to the plaintiff. From that ruling this court will not recede so long as the Supreme Court of the United States adheres to its ruling on the subject. If the words “only warranted” in the instruction had been substituted (with the necessary changes of the contest) by some such terms as “you will” or “you must” the instruction under review would have been technically flawless under the rule of both the Supreme Court of the United States and of this court, cited above. As it is phrased, however, the instruction on this point is incorrect. Hence the only question is whether or not is constituted reversible error under the testimony in this record bearing on the question of contributory negligence of the plaintiff. If the record discloses any facts or circumstances which would have warranted a finding by the jury that the .plaintiff was guilty of negligence directly contributing to his own injuries, then this judgment would have 'to be reversed under the terms of the Federal statute applicable to the duty of the jury in cases of joint negligence. [Sec. 3, Act. April 22, 1908, 35 U. S. Stat. p. 65, chap. 149; U. S. Comp. Stat. 1918, sec. 8659.] Of course, if upon the conceded- facts no inference of negligencé on the part of plaintiff is legally dedueible, then the instruction under review was harmless. The only pleas of contributory negligence contained in the answer of the defendants is in paragraph three, which in substance avers that the plaintiff contributed to his own injury- “in that in using said hose he took no precautions whatever for his own safety, when by the exercise of ordinary care on his part he could not only have kept the hose in good condition, which it was his duty to do and which he failed to do, but that he also by the exercise of ordinary care on his part could have prevented himself from falling, and by the exercise of ordinary care on his part could have prevented any injury to himself by reáson of the use thereof, which he failed to do.” This was all the answer contained in reference to a charge of contributory negligence on the part of plaintiff. The other part of the answer referred to assumption of risk, a doctrine not applicable to this case. [Fish v. Railroad, 172 S. W. 340.]

Clearly it was not the duty of the plaintiff to keep, the hose furnished him by the master in a reasonably safe condition. That duty the law imposed upon the employer. Nor have we been able to find any evidence tending to show any negligence on the part of the plaintiff which contributed to his falling from the top of the car while he was drawing up the hose in order to fill the coolers. Of course defendants cannot rely on any theory of contributory negligence beyond the averments contained in their answer, unless, which is not the case, negligence was shown as a matter of law by testimony given for plaintiff in submitting his case.

In these circumstances failure to embody in the instruction under -review language required by the Federal Employers’ Liability Act in cases only where both parties are negligent, was not harmful error in the absence of any substantial evidence showing that plaintiff was guilty of negligence directly contributing to his own injury in the manner stated in the answer of defendant.

Our conclusion is that we would not be warranted under the facts in this record in reversing this case .on account of the erroneous phraseology of the instruction defining the duty of the jury in cases where joint negligence is shown.

III. Appellant complains of the language contained in Instruction No. 2 given foy the plaintiff, because, in a clause therein, an. issue was submitted to the jury whether or not the hose furnished to plaintiff “was old, defective and rotten,” the contention being that there 110 evidence tending to support that theory. On that point a witness for plaintiff testified, to-wit:

“The foreman furnished Cassin and me with a long hose for watering coaches; it was about sixty-five feet long, I suppose — something like that — and at times it was longer. Sometimes it would get cut off, it would get worn out, ánd one thing and another, and sometimes they would let the cars run over it, using it across the tracks. This hose was made up of two pieces, the longest piece was about fifty feet, the shortest about twelve or fifteen feet, something like that. The short piece was the old hose. It was from a long hose, I suppose fifty feet long that had been worn and cut off— some full of holes until it got down that short. The old hose from which the short piece was taken might have been there two or three years, or four.”

It is evident if the witness correctly described the hose, the instruction in question was not without support in the evidence. Besides it must be borne in mind that if the jury were required to find any bad condition of the hose not warranted by the testimony, plaintiff simply shouldered an additional burden which did not harm the defendants.

. IY. It is insisted that the court erred in the admission of testimony in reference to the common custom of using clamps to connect the two pieces of hose. Defendants were not compelled to adopt any specific method for that purpose other than such an one as would make the use of the hose reasonably safe. However, the evidence in question cannot be said to have been without any evidentiary force, since the very existence of the general custom consists with the idea that prudent men may have followed it. On that subject this court, in Gordon v. Railroad, 222 Mo. l. c. 536, approved a decision of the Court of Appeals in the following language:.

“In Brunke v. Telephone Co., 115 Mo. App. 36, it was held that ‘evidence of a custom in doing a certain thing has probative force bearing upon negligence, since custom arises from its adoption by many prudent men, and the law recognizes the value of arriving at the nature or tendency of the given act by considering its effect upon the conduct of others as shown by a general custom;’ citing O’Melia v. Railroad, 115 Mo. 205; White v. Railroad, 84 Mo. App. 411, and other Missouri cases.”

There was no complaint that the verdict in this case was excessive. We have not been able to find any valid reason, under the facts in this record, why it should be disturned. It will, therefore; be affirmed. It is so ordered.

All concur; Blair, P. J., in paragraphs 1, 8 and 4 and the result.


source: Caselaw Access Project

author: BLAIR, P. J.

license: Public Domain

text:
    LEAH ALLMAN v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA, Appellant.
    Division One,
    April 7, 1919.
    1. BENEFIT INSURANCE: Death: Failuré to Give Notice: Knowledge of Subordinate Dodge. Where the constitution of a fraternal beneficiary society, which, by express statute (Sec. 9, p. . 286, Laws 1911) and the agreement of the parties to the benefit certificate, is made a part of the insurance contract, explicitly provides that, in case of death, notice thereof shall be given within ten . days to the supreme secretary of the order, and ’ also 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, a failure to give such notice within the time stipulated bars' recovery on the certificate, unless waived. Such stipulations are within the power of the society to make, and by the express terms of the statute are binding, and the time is not unreasonable. Knowledge of the subordinate lodge, under • whose auspices the insured’s funeral was conducted, is not notice to the supreme secretary.

      2. —--: -: -: Forfeiture. Unambiguous language in an insurance contract that failure to give notice of the insured’s death within a designated time shall work a forfeiture is enforceable.
    3. -:-:-: Waiver. If the constitution of the fraternal beneficiary society provides that no officer, member or agent of a subordinate lodge can waive any of its provisions, and this provision is a part of the contract, attendance upon the insured’s funeral by the members of the local council, and a letter written by his beneficiary to the secretary-treasurer of said council in which she thanked the members for their kindness at the time of her husband’s death, did not constitute a waiver of the notice.
    4. -:-:-:-r: Sending Blanks. The mere sending of blanks for proof of claim does not constitute waiver of the requirement for notice of the insured’s death. Where the beneficiary, after the time in which notice of the insured’s death was required by the contract to be given had expired, wrote to the proper officer for blanks for proof of her claim, and blanks having printed across the top: “In sending this blank the order does not waive any provision of the constitution, but expressly reserves the same” were sent to her, and all she thereafter did was to write in the blanks answers to inquiries therein contained, going to no expense and being in no wise misled to her prejudice, there was no element of estoppel, and no waiver.
    5. --:-:-:-: Correspondence Between Officers. A letter voluntarily written by the secretary-treasurer of the local lodge to the supreme surgeon of the order concerning a death claim, and the surgeon’s answer thereto that "the disposition of the elaim will be held in abeyance until after the next supreme council meeting,” written long after notice of death was due, contain no element of estoppel or waiver..
    6. -: -: -: -: Collecting Evidence of Defense. The act of the secretary of the local lodge and the attorney for the supreme lodge in calling upon the beneficiary after suit has been brought by her and obtaining from her an affidavit containing statements of the claim and proof of death, even if done in an attempt to collect evidence for the defense, does not constitute waiver of notice or estoppel.
    7. —:-:-:-: -: Offer of Compromise. A mere offer of compromise by the defendant after suit was brought, with nothing more, does not tend to prove waiver of notice.
    8. —■-: -: -: -: Autopsy. In a suit on a benefit certificate against injury or death by accident, where the death certificate contains a statement that the insured died with neuralgia of the heart, and the contract expressly provides for an autopsy in proper circumstances, and one of the questions of fact in the case is whether he came to his death from the effects of his accidental injury, an autopsy, applied for in proper time and circumstances, is a reasonable method of enabling the order to prepare for trial on said defense, and a demand therefor does not imply waiver of notice of death or accident.
    9. -: -: -: -: Forfeiture: Abandonment. A denial of liability, after forfeiture and after suit brought, which does not place denial on a ground or grounds other than forfeiture, but is general and asserts reliance on the provision of the constitution of the order, which by the certificate and the statute are made a part of the contract, does not justify an inference of abandonment of the forfeiture for failure to give notice of death within the time stipulated, and nothing having been done by the beneficiary upon the faith of the denial, to her expense or prejudice, the denial embraces no element of estoppel or waiver.
    Appeal from Jasper Circuit Court. — Hon. D. E. Blair. Judge.
    REVERSED.

      George Hubbert, M. E. Benton and Fred G. Hubbert for appellant.
    (1) Performance of the contractual conditions requiring two notices, one from the member concerning the accident and an additional one from the beneficiary, each within a limited time fixed, with proofs of death’s sole and independent cause, for submission in a given time to decision in the order by the appointed deciding committee, and of the further condition of consent to be given and procured by the beneficiary on request for autopsy, were each and all essential parts of respondent’s case. The absence of any one of such conditions necessarily must defeat the action. Not one of them is found fulfilled in this record. There is nothing to support the verdict and judgment. Trav. Ins. Co. v. Nix, 142 Fed. 653; Westerman v. Sup. Lodge, 196 Mo. 738; Claudy v. Royal League, 259 Mo. 107; 2 Bacon Ben. Soc. (3 Ed.) sec. 460; G-alvin v. Knights of P. M., 169 Mo. App. 469; Haynie v. Knights Templars Indem. Co., 139 Mo. 416; Norton v. Cath. Ord. of Foresters, 114 N. W. 893; Bureliard v. Western Comí. Trav. Assn, 139 Mo. App. 621; Boyce v. Royal, 99 Mo. App. 349; Brittenham v. Sovereign Camp, 180 Mo. App. 534. (2) The required and specified time notices are vital to the contract and are inerasable conditions, and the proof of them properly vrests upon respondent in order to recover. Niblack on Benefit Societies, sec. 415; Travelers’ Ins. Co. v. Meyers & Co., 49 L. R. A. 760; Meech v. Nat. Acc. Soc., 63 N. Y. Supp. 1008, 50 App. Div. 144; Natl. Pap. Box Co. v. Aetna Life Ins. Co., 170 Mo. App. 361; Hoffman v. Mfg. Accident Co., 56 Mo. App. 310; Whittemore v. Sells, 76 Mo. App-. 248; Hayes v. Continental Casualty Co., 98 Mo. App. 410; James v. Casualty Co., 113 Mo. App. 622; Baumister v. Casualty Co., 124 Mo. App. 38; McFarland w Accident Assn., 124 Mo. 215. (3) The breach of the condition that the beneficiary should give and procure consent to the holding of an autopsy and examination of her husband’s remains bars her recovery as an essential and unmoveable barrier. This under the same fundamental principle and constitutional guaranties applicable to other unfulfilled conditions precedent. Loesch v. Surety Co., 176 Mo. 654; Brittenham v. W. O. W., 180 Mo. App. 535; Holmes v. Tyson, 147 Pa. 3051, 15 L. R. A. 209; Condun v. Mutual Reserve L. Assn., 44 L. R. A. 149; Carr v. Pacific Mut. L. Ins. Co., 100 Mo. App. 602; Shader v. Pass Assn., 66 N. Y. 441, 23 Am. Rep. 65. (4) There is no competent evidence of any waivers of the essential conditions of recovery under the insurance agreement, neither by intention of respondent nor by acts of its anthorized agent, member, officer or body; nor are there any grounds of estoppel shown against any required performances of such conditions. The rulings and instructions of the court, allowing the jury to overturn such conditions, are grievous errors, and violative of fundamental law. Other instructions in proper form cannot be regarded as having cured this error. U. S. Const., Articles 5 and 14 of Amendments; Mo. Const, art. 2, secs. 10, 20’ and 30'; Laws 1911, p. 2i92, sec. 2-2; D'avis v. National Council, 196 S. W: (Mo. App.) 97; Calvin v. Knights of P. M., 169 Mo. Ap.p. 508; Hollard v. Tyler, 11 Ind. 121; Ramsey v. General Accident Co., 160 Mo. App. 236; Brittenliam v. Sovereign Camp, 180 Mo. App. 537; Wintergast v. Court of Honor, 185 Mo. App. 373; Loesch v. Union C. & S. Co., 176 Mo. 654; Day v. Supreme Council, 174 Mo. App. 260; Clair v. Royal Arcanum, 172 Mo. App. 109; Chandler v. Ins. Co., 180 Mo. App. 394; Lesser v. St. L. & S. P. Ry. Co., 85 Mo. 335; Myers v. Maryland Casualty Co., 123 Mo. Ápp. 687; Dezell v. Fidelity Co*., 176 Mo. 253*; Griffith v. Supreme Council, Royal Arcanum, 182 Mo. App. 644; Meech v Natl. Acc. Soc., 63 N. Y. S. 1008; Travelers Ins. Co. v. Nix, 142 Fed. 653.

      Humphrey, Boxley & Beeves, for respondent; Haywood Scott of counsel.
    (1) “The beneficiary, until the death of the insured, had, at most, only an inchoate and contingent interest in the policy. The insurer could not, until that event occurred, recognize her as a party to the contract having a present interest therein. She could have no claim under the contract until the death of the insured and therefore she could give no notice of the accident or injury until that event occurred.” Crotty v. Casualty Co., 163 Mo. App. 637; Hoffman v. Accident Co., 56 Mo. App. 306. (2) Even if plaintiff did not notify appellant within the period stipulated in the contract, appellant by its course of dealing waived its right to declare a forfeiture, (a) According to the insurance contract “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.” (b) According to the testimony, the local organization where the assured paid all his dues and premiums officiated at his funeral, and on March 19, 1914, Gettings, as secretary and treasurer of Neosho council, wrote Mrs. Allman in relation to the death of her husband. Subsequently, the appellant, under date of April 6, 1914, acknowledged receipt of notice of death from respondent, forwarded proof blanks and requested particulars of the death, and neither then nor thereafter did appellant complain that notice had not been timely given. In fact appellant attempted to settle the claim, and C. M. Taylor, authorized representative,, called on respondent, telling her he had “currency” in his pocket with which to settle, and at no time did appellant complain of any defect in the notice of death. Even when respondent refused to accept the “currency” from C. M. Taylor, “authorized representative,” eight months after the death, because the amount was inadequate, Taylor never mentioned defect in notice of death, but instantly as a terrifying influence, demanded and was accorded the right to hold an autopsy. After-wards appellant denied liability or rejected the claim', but did not do so. on the grounds that the notice of death was out in time. Authorized representatives, such as Get-tings, secretary and treasurer for appellant at Neosho, and Mr: Hubbert, one of the attorneys in this case, obtained certain affidavits from plaintiff for appellant, and these were received and used by appellant as a basis of its’ consideration of the claim. It was not disputed that Gettings and Hubbert were acting for appellant, and while both of these men were in court during the trial they were not called to deny their authority or that they were acting for appellant.' (c) “No one can doubt that the purpose of the notice required by this provision of the policy is to advise defendant of the probable claim to be presented and afford it an opportunity for investigation thereabout. It appears that though defendant’s general, agent denied all liability on the policy at the time the notice was served, September 20, it nevertheless sent its adjuster, Mr. Carroll, to investigate and settle the claim a few weeks thereafter . . . At most the failure to give the notice authorized defendant to declare a forfeiture of the claim under the policy for that cause. The provision as to such forfeiture was for defendant’s benefit and could be waived by it if it saw fit to do so. 'Defendant knew its rights in the premises and it first asserted them to the effect above stated. A waiver is the intentional abandonment or relinquishment of a known right, and the intention to do so is the essential element involved. Francis v. A. O'. U. W., 150 Mo. App. 347. Obviously the court was authorized to find from the facts above set forth that defendant intended to and did waive the right of forfeiture on the ground that notice was not given within a reasonable time, for this matter seems to have been abandoned entirely by the adjuster. A waiver once attached may not be thereafter recalled.”' Bell v. Mo. State Life Ins. Co., 166 Mo. App. 390. There is an abundance in the evidence to' support the finding on the grounds of a waiver. Myers v. Casualty Co., 123 Mo. App. 682; Crenshaw v. Pac. Mutual Life Ins. Co., 63 Mo. App. 678; Brix v. Fidelity Co., 171 Mo. App. 524; Mining & Milling Co. v. Fire Ins. Co., 267 Mo. 604; Thompson v. M. B. A., 189 Mo. App. -.
   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 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 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, 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.

• 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 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.

(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 parties omitted it. [Dezell v. Fidelity & Casualty Co., 176 Mo. l. c. 281.]

II. The principal question is, whether the forfeiture was waived.

(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.

(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 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.]

(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.

(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 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.

(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-examination 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.

(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.

(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.

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 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.


author: BOND J.

text:
    LILLIAN FULKERSON YOUNG et al. v. HARTFORD LIFE INSURANCE COMPANY, Appellant.
    Division One,
    April 7, 1919.
    1. LIFE INSURANCE: Assessment: According to Law of Incorporating State: Full Faith and Credit. Conceding that it was within the province of the court of Connecticut, which incorporated the Hartford Life Insurance Company, to determine the rule of assessment under its charter and the methods by which they are made, and that by the Constitution of the United States the courts of this State must give full credit to the decrees of the Connecticut court, thé rulings in Hartford Life Ins. Co. v. Barber, 245 U. S. 146, are not applicable to an assessment by said company which in- ■ eluded, in addition to a portion intended for the benefit of the mortuary fund, a tax due the State of Missouri, for no such question was involved in those rulings. .
    2. -: -: Failure to Pay: Forfeiture. Where an insurance company reserves the power in its policies to forfeit them for non-payment of assessments and dues, it must, in order to avail itself of the provision as a defense to a suit on a policy, allege and prove that the aggregate amount demanded of the policyholder was legal and correct, and that upon due notice he failed to make payment thereof. If any portion of the assessment is illegal the policy cannot be forfeited for non-payment.
    3. -: -: Tax Due State. A life insurance company doing business on the assessment plan has no legal right to increase'its assessment for the benefit of its mortuary fund by adding thereto the amount of . the tax due the State and demanding payment thereof. And such illegal and invalid demand having been made a part of the assessment, a failure to pay any portion of the assessment does not forfeit the policy.
    4. -:-:-: Amount of Recovery: Enforcement of Judgment. In a suit on an assessment policy, where the insured has failed to pay an assessment which included both a legal demand for the benefit of the mortuary fund and an illegal demand of a tax due the State, the amount of the policy should be reduced by a deduction therefrom of that portion of the unpaid demand which represented the assessment for the mortuary fund, and recovery the enforcement thereof out of the mortuary fund, according to limited to the balance, and the judgment should be limited to the contract.
    Appeal from Lafayette Circuit Court. — Hon. Samuel Davis, Judge.
    REVERSED AND REMANDED.

      Jones, Hooker, Sullivan & Angert and Geo. F. Raid for appellant.
    (1) The Connecticut court was a court of competent jurisdiction to determine the question of the right of the company to maintain the mortuary fund, and its decree was binding upon the company and all its members. Hartford Life Ins. Co. v. Ibs, 237 U. S. 662; Royal Arcanum v. Green, 237 U). S. 531; Hartford Life Ins. Co. v. Barber, 245 U. S. 146; Condon v. Mutual Reserve, 89 Md. 99; Taylor v. Mutual Reserve, 97 Ya. 60; State ex rel. Hartford Life Ins. Co. v. Shain, 254 Mo. 78. (2) The issuie as to the right and propriety of maintaining' the mortuary fund and the amount that could properly be held in such fund was involved in the Connecticut case and-in the case at bar. Hartford Life Ins. Co. v. Ibs, 237 U. S. 662; Southern Pacific Co. v. United States, 168 U. S-. 1; Klein v. Insurance Co., 104 U. S. 88. (3) The circuit court denied full faith and credit to the decree of the Connecticut court in the Dresser case by its assumed finding as a fact, without support in the evidence and against the evidence, that the assessment in question was excessive and illegal. Creswill v. Knights of Pythias, 225 U. S. 246; Northern Pacific v. North Dakota, 236 U. S. 585.

      S. N. Wilson, Charles Lyons and C. L. Bistine for respondents.
    (1) The burden rests on the defendant to show that the assessment made under Mortality Call 142, and payable March 1, 1914, was necessary, not" excessive and legally made, in the manner prescribed by the policy sued on. Barney v. Modern Woodman, 79 Mo. App. 640; Puschman v. Insurance Co., 92 Mo. App. 640 ; Hannum v. Waddill, 135 Mo. 153; Settle v. Insurance Co., 150' Mo. App. 530; King v. Hartford Life Ins. Co., 133 Mo. App. 612; Wayland v. Indemnity Co., 166 Mo. App. 2.21; Johnson v. Hartford Life Ins. Co., 166 Mo. App. 275; Bur chard v. Western Commercial Travelers Assn., 139 Mo. App.'606; Johnson v. Hartford Life Ins. Co., 271 Mo. 562. (2) If the assessment made under Call T42i was excessive, or illegal for any reason, the insured was not obliged to pay the sarnie; for his policy could not be subjected to a forfeiture until he refused to pay a lawful demand. , Insurance Co. v. G-uese, 49 Mo. 329; Settle- v. Ins. Ássn., 150 Mo. App. 529; King v. Hartford Life Ins. Co., 133 Mo. App. 620; Craig v. Ins. Co., 136 Mo. App. 10; Johnson v. Hartford Life Ins. Co., 166 Mo. App. 261; Johnson V; Hartford Life Ins. Co., 271 Mo. App. 562; Wayland v. Indemnity Co., 166 Mo. App. 221. (3) The item of $1.25 for a tax paid on premiums to the State of Missouri, included in the amount assessed under Mortality Call 142, was an illegal charge by defendant. R. S. 1909, sec. 7099; Northwestern Masonic Aid Assn. v. Waddill, 138 Mo. 628; Westermian v. Supreme Lodge Knights of Pythias, 196 Mo. 670; Bankers’ Life Co. v. Chorn, 186 S. W. 681; Mass. Bonding & Ins. Co. v. Chorn, 201 S. W. 1122. (4) The undisputed evidence offered by defendant showed an excessive assessment was made by Call 142, hence the court committed no error in giving the instruction to find for plaintiffs. R. S. 1909, sec. 1850; Davidson v. Hartford Life Ins. Company, 151 Mo. App. 561; Cass County v. Insurance Company, 188 Mo. 17; Wolff v. Campbell, 110 Mo. 120; Cannon y. Cas. Co., 145 Mo. 518; Foster v. Ry., 112 Mo. App. 73. (5) The only Federal question that can arise in this ease is whether the trial court gave full faith and credit to the decree of the Connecticut court in the. case of Dresser et al v. Hartford Life Insurance Company. All other points are governed by the Missouri statutes and decisions. Hartford Life Insurance Co. v. Ibs , 237 U. S. 662.
   BOND J.

Plaintiffs are the children and heirs at law of J. J. Fulkerson (who died June 6,1914) and the beneficiaries of a policy of insurance for three thousand dollars, issued to him on October 7,1892, for the amount of which they asked judgment.

The defendant is a- Connecticut corporation, licensed to transact the business of life insurance under the laws of this State, and in defense of its refusal to pay the amount of the policy avers that on January 30, 1914, it duly assessed the assured, J. J. Fulkerson, by computing the amount of said assessment (No. 142) by the method precribed in its contract with him, and adding to this computation a tax thereon, making a total of $61.47; that notice thereof was sent by mail on that date to the address of the assured, and in addition thereto and by the same notice, it demanded of assured the payment of $2.25 as dues for the quater ending May 30, 1914; that the assured failed to pay said dues and said assessment on or before March 1, 1914, or on March fifth or twentieth, thereafter, at which dates defendant was willing to accept payment, and that assured has never at any time paid said assessment and quarterly dues, thereby terminating the policy of insurance or certificate of membership issued to him by defendant.

Defendant further avers that the purpose of said assessment was to create a “Mortuary Fund” referred to in the certificate sued on;- that such certificate is payable only out of said Mortuary Fund, and defendant is not otherwise liable for the indemnity provided by said certificate; that. defendant is trustee of said fund for the beneficiaries of said certificate; that a court of competent jurisdiction in the State of Connecticut in a suit brought in that State by persons holding certificates similar to the one in suit, has adjudicated. the rights of the holders of such certificates and that a copy of the judgment and proceedings of said court is attached, as an exhibit, to its answer; “that under the Constitution of the United States, full faith and credit must be given to the judgments and decrees of the courts of Connecticut; that under the terms of said trust as construed and adjudicated by said courts, defendant is without, authority to pay out of said Mortuary Fund the amount of any certificate of membership, where, as in the case of J, J. Fulkerson, the member has failed or refused to pay the assessment levied against him to maintain such fund. Wherefore, defendant shows to the court that it is not liable to plaintiffs in this case, and prays to be dismissed with its costs.”

Under a peremptory instruction the jury returned a verdict of $3265; from which defendant duly appealed to this court upon the theory that a Federal question is involved.

The decree in the Connecticut court and all the proceedings culminating therein, were admitted in evidence on the trial of the present case without objection. That they are entitled. to full faith and credit in the courts of this State, whenever relevant to any issue before them, is the mandate of the Constitution and has been recently affirmed by the Supreme Court of the United States. [Hartford Ins. Co. v. Barber, 245 U. S. 146.] The points ruled in that case were that it was within the province of the Connecticut court to determine the rule of assessments under the charter of the company and the method by which they can be made. In the case then under review, this court had held that a particular assessment complained of was void for excess in amount and because not made directly by tbe board of directors of tbe company. Tbe Supreme Court of tbe United States beld, however, on a writ of error from tbe judgment of tbis court, that tbe conclusions of tbis court on these points were erroneous and were predicated upon a failure to give full faith and credit to tbe method of assessment prescribed by tbe decree of tbe Connecticut court. Neither of these questions is presented by tbe appeal in the present case. Nor did tbe learned trial court in its consideration of tbe decree of tbe Connecticut court, in' any respect, fail to give it full faith and credit as determinative of tbe rights of tbe parties concluded thereby.

The learned trial judge in tbe present case instructed tbe jury to bring in a verdict for tbe plaintiff for tbe amount of tbe policy in suit and interest thereon. His decision in that respect may well consist with full compliance with tbe rule as to assessments and tbe designation of' parties by whom they are to be made in tbe decision and judgment of tbe Connecticut court. For if it be conceded for argument, that tbe portion of tbe assessment (Call 142) intended for tbe benefit of tbe Mortuary Fund of tbe defendant insurance company was in all respects computed and .ascertained as prescribed by tbe Connecticut court, yet that concession does not affirm tbe correctness of tbe action of defendant in adding to such assessment $1.25 as a tax due tbe State of Missouri; for tbe Connecticut court did not rule on that point. Hence tbe propriety of making that addition to tbe assessment presents a question outside tbe scope of tbe adjudication of the Connecticut court. Tbe defendant bad no legal right to increase its assessment for tbe Mortuary Fund, by adding thereto tbe amount of tbis tax and demanding payment of both. No such tax was demandable, under tbe statutes and decisions of tbis State, by any company doing business on tbe assessment plan. [R. S. 1909, sec. 6959, last clause, and Sec. 7099; Masonic Aid Assn. v. Waddill, 138 Mo. 62; Westerman v. Knights of Pythias, 196 Mo. 670; Bankers’ Life Co. v. Chorn, 186 S. W. 681; Mass. Bond & Ins. Co. v. Chorn, 201 S. W. 1122.] These statutes and their construction, meaning and effect are now and were the adjudged law of this State at the time of the issuance of the policy in suit. To the extent that the assessment against the policyholder was augmented by the inclusion therein of $1.25 as a tax due the State of Missouri, it was illegal and invalid. No such exaction was demandable then or theretofore of the policyholder. It is the law of this State that where an insurance company reserves the power in its policies as was done in the present case, to forfeit for non-payment of assessments and dues, it must, in order to avail itself of that drastic provision, allege and prove that the aggregate amount demanded of the policyholders was legal and correct and .that upon due notice he failed to make payment thereof. As was well stated by the Court of Appeals, “a certificate holder in an assessment company or association of whom an excessive assessment is demanded, is not required to tender a sum equivalent to a legal assessment in order to prevent a forfeiture, but may stand on his right to refuse to acknowledge any liability to respond to such illegal assessment. He cannot be put in wrong until he rejects or neglects a lawful demand.” [King v. Ins. Co., 133 Mo. App. 620 et cases cited; Pac. Mut. Ins. Co. v. Guse, 49 Mo. 329.] At the time the mortuary assessment and the Missouri tax were demanded of the policy holder, a demand was also made upon him for the payment of quarterly dues of $2.25,. creating a total demand of $63.72. As this amount is infected with an illegal demand as to the state tax (not to mention an overcharge of ten cents as a collection fee for the payment of a former assessment through a bank) the refusal to pay this aggregate amount was not a ground for forfeiture of the insurance of the father of the plaintiffs.

The judgment of the trial court, however, should have been diminished by a deduction therefrom of that portion of the demand which represented simply the assessment for. the Mortnary Fund, and it should have been further limited to the enforcement thereof out of the Mortuary Fund as provided in the contract of insurance. To the extent thus indicated, the judgment of the trial court was erroneous, and unless plaintiffs will consent to a modification thereof as herein directed within ten days, the judgment of the trial court will he reversed and the cause remanded. It is so ordered.

All concur, except Woodson, J., not sitting.