Baker v. Sovereign Camp, W.O.W. , 233 Mo. App. 13 ( 1938 )

DISSENTING OPINION. I cannot concur in the majority opinion herein for the reason of the fact that the opinion eliminates from consideration the charter and laws of the fraternal society of which the plaintiff is a member, and wherein said plaintiff has agreed to abide by the laws of the society.

The writer holds that when parties enter into mutual agreement and adopt a constitution and provide a republican form of government and agree that their mutual contracts shall embrace and be governed according to the adopted laws of the society, that any construction of the contract of any member that leaves out consideration of said laws is erroneous, unless by reason of the law of this State the provisions of the contract cannot be enforced.

The only grounds upon which such contracts as are herein in issue cannot be enforced, we conclude, is the law as declared by the Supreme Court of Missouri, to the effect that a foreign society's contract, in the absence of authority to do business in this State, must be treated as an old line insurance contract, and the laws of this State as to old line insurance contracts applied to said contracts.

In the case of Bolin v. Sovereign Camp of the Woodmen of the World, 112 S.W.2d 582, certified to this court by mandate of Supreme Court, 339 Mo. 618, and wherein the Sovereign Camp was the appellant, the judgment of the circuit court was affirmed. I concurred in said opinion for the reason that by the mandate of the Supreme Court the good faith and credit clause was declared not to be involved in the case. This, of course, eliminated from our consideration the charter and laws of the society, and left us no other alternative than to determine the issue based upon our law governing old line insurance, for the reason that there was neither allegation or proof of the fact, if so, that said society, a foreign society, was chartered to do business in this State, either at the date of the contract or the date of maturity, as specified in the contract.

The writer dissented in Reese v. Security Benefit Association, now pending on certiorari in the Supreme Court of Missouri, for the reason that it was shown in said case that the society was duly authorized to do business in this State at the alleged maturity date, and at the time suit was brought. It is our contention that a foreign mutual society, when it is chartered to do business in the State of Missouri, carries with it its charter and laws and, by the act of application and admission to do business in this State, all provisions in mutual contracts between its members, that are prohibited by the charter and laws as interpreted by the State of the incorporation, and all provisions prohibited by the laws of this State governing fraternal societies are abrogated, and the coverage clause of each mutual contract, that is in existence at the time, must have read into same the provisions of the charter and laws as interpreted by the courts of the State of Missouri touching such contracts as are thereafter issued to members who join after the society is authorized to do business in this State, unless the society makes provisions to continue its old contracts on terms that maintain the mutuality as between all of its members. Otherwise great injustice is done which violates the fundamental principles of the law governing mutual contracts. We find nothing in the record before us in this case that shows that any such provision, as above, has been made.

We have before us a copy of the opinion of the Supreme Court of Missouri in Robertson v. The Security Association, not yet published. The Bolin, Reece and Robertson cases, supra, have this in common: In each of said cases it is shown that the original contracts of insurance were made in this State before the societies were authorized to do business in this State, and each of said societies is shown as incorporated in a foreign State. In the Bolin case, as before stated, there was not alleged or shown that the society was authorized to do business in this State at time of accrual of claim, or at time suit was filed. The Reece and Robertson cases are distinguished from the Bolin case in that the societies are shown as authorized to do business in this State at the time of accrual and suit.

Since the Robertson case was handed down by the Supreme Court, the opposing attorneys in the case at bar have called same to our attention with opposing interpretations.

The appellant herein is contending that the opinion in the Robertson case ignores the fact that the association was not licensed to do business in this State at the time the certificate was issued and, therefore, not controlling in the case at bar.

Respondent in this case contends that the language of the opinion in aforesaid case is to the effect, that when the foreign society is chartered to do business in this State then all of its contracts, whether issued before or after, are to be interpreted with the provisions of its charter and laws under which it is chartered.

The contention of the writer is that, insofar as the case at bar is concerned, the judgment should be affirmed regardless of whether or not the law of the State where incorporated be applied. Our reason for so holding is that the defendant society at the time of the accrual, and time of suit, was chartered to do business in Missouri, and that under the laws of Missouri the provisions of the contract under which the plaintiff seeks to recover is prohibited by the laws of Missouri, and that under the laws of Missouri governing mutual association contracts of insurance the plaintiff is barred from recovery.

Considering as I do that the opinion herein is in conflict with Gooch v. Metropolitan Life, 61 S.W.2d 704, l.c. 707, and Garretson v. Woodmen of the World, 210 Mo. App. (Springfield Court of Appeals) 539, and concluding further that the opinion is out of harmony with Robertson v. The Security Benefit Association, supra, I ask that this case be certified to the Supreme Court of Missouri.