The district was known as "Blackwater [ 3. INSURANCE (§ 712*)-MUTUAL BENEFIT INdrainage district," and its boundaries were SURANCE-PLACE OF CONTRACT. afterward extended as is provided by statute. Difference also arose as to costs in the matter of extension, and found its way to this court in the case of Blackwater Drainage District v. Borgstadt, 144 S. W. 888, decided at the present term.

[1] In the present case, the fee bill was quashed by the circuit court on the ground that the drainage district was liable for the costs of organization, and not the petitioners. We think the court was right in this ruling. If the petition had failed through some fault of the petitioners, it is perhaps true that they would have been liable for all proper costs. But the district was established, and the statute clearly means that the costs are to be paid by the district. Thus section 5496 provides that the owners of real estate subscribing to the articles of incorporation shall state that they are willing and that they obligate themselves to pay the "taxes which may be assessed against their respective lands," for the expenses of organization. And section 5497 provides for notice to those owners of land who do not sign that their property will be liable to taxation for the expense of organization. These sections alone show that the district is the party liable for costs. But, in addition to them, we find that section 5527 directs that all necessary court costs shall be paid by the district. [2] The court struck out some items of costs stated in the fee bill. This was irreg

ular, since as the bill was issued against parties not liable, no further adjudication should have been had than the judgment quashing it for that reason.

The judgment of the circuit court will be set aside, and the cause remanded, with directions to enter judgment quashing the fee bill for the reason that the parties against whom it was issued are not the parties designated by the law to pay the costs.

concur.

All

UMBERGER v. MODERN BROTHERHOOD
OF AMERICA.

(Kansas City Court of Appeals.
March 4, 1912.)

Missouri.

1. INSURANCE (§ 687*)-MUTUAL BENEFIT ASSOCIATIONS-NATURE OF BUSINESS.

The insurance feature is merely an incident of the purpose of a fraternal benefit association; its primary object being social and benevolent.

decedent was a member was incorporated in The fraternal benefit association of which Iowa, and decedent was a citizen of Kansas when the certificate was issued by a local lodge in Missouri of which he became a member. He remained a resident of Kansas to the time of his death. He paid his assessments and per capita tax through the Missouri lodge, and his death was reported to such lodge. The conbenefit certificate from the home office, the stitution provided that, upon receipt of the president should notify the candidate, and he should be initiated by the subordinate lodge. Held, that the certificate issued to decedent was a Missouri contract.

Cent. Dig. §8 173-175, 293, 1934; Dec. Dig. § [Ed. Note.-For other cases, see Insurance, 712.*]

4. INSURANCE (§ 712*) - LIFE INSURANCE PLACE OF CONTRACT.

A contract is considered as executed where

the final act which makes it a binding contract
is done, and, where an insurance contract is
not to become completed until payment of a
premium and delivery, the place where that is
done is the place of the contract, though it
shall be deemed the place of contract.
provides that the place of insurer's residence

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 173–175, 293, 1934; Dec. Dig. § 712.*]

Appeal from Circuit Court, Jackson County; J. E. Goodrich, Judge.

Action by Laura A. Umberger against the Modern Brotherhood of America. From a judgment for plaintiff, defendant appeals. Affirmed.

Conkling, Rea & Sparrow, for appellant. W. H. Vernon, Sr., W. H. Vernon, Jr., and Harkless, Crysler & Histed, for respondent.

ELLISON, J. Plaintiff is the widow of Stephen L. Umberger, deceased, and brought this action on a benefit certificate of life insurance for $2,000. Defendant is a fraternal benefit society organized, chartered, and resident in the state of Iowa. It was au

thorized to do business in Missouri and Kansas and some other states. Its organization embraced local or subordinate lodges in the territory where it did business. It had a local lodge in Kansas City, Mo. Umberger lived and died a resident of Pawnee county, Kan., a distance of nearly 300 miles from Missouri. While a resident there he applied for membership to the local lodge at Kansas City, Mo., and for the certificate of insurance in controversy on the 28th of February, 1898. The certificate was issued to him in a few days thereafter, payable to his wife, or, in case of her death, "to his legal representatives," and contained a clause stating that defendant should not be liable if death was caused by suicide, sane or insane. He died at his home in Kansas on the 30th of December, 1908. Proofs of death were made, and, defendant refusing [Ed. Note. For other cases, see Insurance, to pay, the widow instituted this action in Cent. Dig. & 1933, 1937; Dec. Dig. § 770.*] Kansas City, Mo., as stated. Defendant's For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1824; Dec. Dig. § 687.*] 2. INSURANCE (§ 770*)-FRATERNAL BENEFIT INSURANCE-CLASSES OF BENEFICIARIES.

Persons not of the class named in Rev. St. 1909, § 7109, can become beneficiaries in certificates issued by a fraternal benefit association.

refusal to pay is based on the claim that association, organized solely for the benefit deceased committed suicide. A right to make that defense depends upon whether defendant was authorized to issue, and did issue, such a fraternal benefit certificate to deceased as is allowed by our statute. By the statute of this state (section 7109, R. S. 1909) domestic fraternal beneficiary associations must make provision for the payment of death benefits which "shall be to the families, heirs, blood relatives, affianced husband or affianced wife of, or to person dependent upon the member." The statute grants to such associations highly important and valuable privileges not allowed to general life insurance companies. Among these are exemptions from taxation and the right and privilege to defend claims where the assured committed suicide, or where he made false representations. By the terms of sections 7111 and 7112 of the statute, such foreign associations as come "within the description as set forth in section 7109," above mentioned, may likewise do business in this state, with the same privileges the domestic association enjoys.

of its members and their beneficiaries, which beneficiaries are named, and no one not of the class named can be a beneficiary. Herzberg v. Modern Brotherhood, 110 Mo. App. 328, 85 S. W. 986; Dennis v. Modern Brotherhood, 119 Mo. App. 210, 95 S. W. 967; Wilson v. American Benevolent Ass'n, 125 Mo. App. 597, 103 S. W. 109; Kroge v. Modern Brotherhood, 126 Mo. App. 693, 105 S. W. 685. Nonresident fraternal associations, seeing the valuable privileges and exemptions granted by the Legislature of this state to our own associations, sought admittance, and it was granted by sections 7111, 7112, R. S. 1909, on condition that they brought themselves "within the description" of our own associations, as set forth in section 7109. Now, if a Missouri fraternal organization were to issue a certificate payable to the legal representative or legatee of the member, it would not be valid, as is shown by the authorities above cited; yet, according to the effect of the claim of defendant, if such certificate is issued by a foreign association, it is valid and enforceable under our statute. This presents the extraordinary situation of affirming that you may enforce an obligation under a statute which that statute forbids. In order to be exempt from the gener

claiming to be a fraternal benefit organization, must be such a one as comes within the terms of a domestic organization, and, if the beneficiaries to which its insurance funds are payable are not of the same class

The statute of Iowa (Code, § 1824) requires that fraternal associations organized in that state shall issue certificates of insurance payable to the "husband, wife, relative, legal representative, heir or legatee," of the mem-al life insurance law, a foreign association ber; thus including two classes of beneficiaries (legal representatives and legatees) not named in our statute. Plaintiff therefore insists that the defendant association does not "come within the description" of a domestic association as required by our states with those of the domestic association, it ute. And she further insists that the certificate in controversy, being payable to deceased's legal representatives in case of his wife's death, shows on its face that it does not come within such description, and that, therefore, defendant's contract with the deceased is not a fraternal benefit contract, and defendant is not entitled to defend on the ground of suicide. We think the point well taken.

[1] In discussing this question it seems to us that one material consideration is overlooked by defendant. Such associations are benevolent institutions, and have for their professed primary object the social and moral benefit of the membership, and for that reason they take the form of an organized brotherhood; the insurance feature being merely an incident. State ex rel. v. Vandiver, 213 Mo. 187, 111 S. W. 911, 15 Ann. Cas. 283. It is manifest that, notwithstanding the insurance feature, they do not represent trade or commerce. They are essentially benevolent; and on that account they have been granted certain extraordinary privileges privileges only found extended to organizations of a religious or a benevolent character.

[2] They are described by the statute (section 7109, R. S. 1909) as being a voluntary

does not come within such description. Dennis v. Modern Brotherhood, supra. It seems to us that a fair test of whether the defendant organization comes within the description of a domestic organization as it is described in section 7109 may be had by supposing the following not improbable case: If a foreign organization should apply to the State Insurance Commissioner for a license to do business in this state, and it should appear to him that such organization had classes of beneficiaries to which it could issue benefit certificates, which our law does not recognize and which would be invalid, as a fraternal benefit contract, under our law, and he should refuse on that ground, could he be compelled to do so by mandamus? Could he not successfully answer such writ by showing that the organization proposed to come into this state and do a class of business, insure for a class of beneficiaries, not authorized or allowed in this state? It seems to us that under the authority of State ex rel. v. Orear, 144 Mo. 157, 45 S. W. 1081, and State ex rel. v. Vandiver, 213 Mo. 187, 198, 111 S. W. 911, 15 Ann. Cas. 283 et seq., that he could.

But it has been suggested that the St. Louis Court of Appeals, in Armstrong v. Modern Brotherhood, 132 Mo. App. 171, 112

amount equal to the face of this certificate, this certificate shall be determined cancelled and of no effect and must be surrendered to this fraternity for cancellation." In a case already referred to, an organization, resident in the state of Colorado, sought to obtain a license from the insurance commissioner of this state and its application therefor was refused, whereupon it applied to the Supreme Court for a mandamus to compel the commissioner to issue the license. The commissioner in answer to the writ showed that the organization was authorized to issue benefit certificates for insurance like that provided in the certificate in controversy which we have just set out. The Supreme Court justified the commissioner in his refusal of the license, and denied the writ. State ex rel. v. Orear, 144 Mo. 157, 45 S. W. 1081. Under the law of that state and the constitution of the association in that case, it was a fraternal beneficiary association organized under the laws of Colorado and conducted its business solely for the benefit of its members and not for profit, and obtained its funds by means of dues and assessments, authorized both by the laws of Colorado and Missouri; and it had a lodge system of government and a ritualistic form of work. It was formed and organized and was to be carried on for the sole benefit of its members and their beneficiaries, and not for profit. It thus met all the tests of a fraternal benefit association, as such; yet since it authorized, in addition to the fraternity insurance

S. W. 24, differed from the views of this court as expressed in the Dennis Case, supra, and has certified the case to the Supreme Court for final and authoritative determination, and we are asked to withhold a decision of this case until that is decided. The St. Louis Court of Appeals, in refusing to approve of the Dennis Case, seemed to entertain the view that if the foreign association was organized for the benefit of its members and their beneficiaries, and not for profit, and had a lodge system with ritualistic work, it was a fraternal beneficiary association and came within the description of a domestic association as required by our statute, regardless of whether the beneficiaries in the foreign association corresponded to those permitted in the domestic association. In other words, that court stated that the classes of beneficiaries named in our statute was no part of the "description" with which foreign associations must comply. But as shown and explained by that court in the late case of Ordelheide v. Modern Brotherhood, 158 Mo. App. 677, 139 S. W. 269, although the foreign association is organized for the benefit of its members and not for profit, and although it has a lodge system with ritualistic work, yet if it had classes of beneficiaries, some recognized and some not recognized by our statute, it could not issue a fraternal benefit certificate to any of those not named by our statute, and claim exemption from the statute applicable to old line companies, such as disability to defend on the ground of suicide; thus leav-recognized by our statute, another form of ing the only difference between the two courts to be that this court holds, as in the Dennis Case, that, if the foreign association has a class of beneficiaries not allowed to our domestic associations, it does not come "within the description" of our statute, and cannot therefore do a fraternal benefit insurance business in this state freed from our general insurance laws; while the St. Louis Court of Appeals holds that it may do such business, exempt from our insurance laws, if the particular certificate is payable to a beneficiary whom our statute permits a domestic organization to insure. But as the case before us involves another proposition which must defeat defendant, regardless of the foregoing question, and as the difference between the two courts is to be soon determined by the Supreme Court, we will not place our decision on the matters hereinbefore stated, and we have only mentioned them in consideration of elaborate arguments of counsel for either side.

Coming, therefore, to the question decisive of the case, we find the certificate in controversy contains the following clause providing for payment of an annual sum if the member lived beyond seventy years: "Two hundred dollars each year, for a period of ten years, will be paid the said Stephen L. Umberger, beginning with his seventieth birthday; when said member has received an

insurance, in effect an endowment form, the Supreme Court in that case ruled that it did not "come within the provisions of our statute," and could not do business in this state as a fraternal organization.

[3] Defendant's argument and brief is a concession that State ex rel. v. Orear, supra, would be a controlling authority for plaintiff were it not that the certificate was not a Missouri contract. To sustain this assertion, defendant relies upon the fact that it is a resident corporation of Iowa, and the deceased member was a citizen of Kansas before his insurance and up to his death. We do not see that such fact should control the question in the light of other patent facts. He only became a contracting party with defendant by reason of becoming a member of a Missouri lodge, organized under and by permission of the laws of Missouri. Не made application for membership (his proposal for a contract) and paid his assessments, as well as per capita tax in this state. There was no liability on the contract until these payments were made and the contract delivered. He was subject to expulsion by the lodge in this state, and finally, his death was to be reported by that lodge.

But, in addition to this, under the laws of the association, the benefit certificate was sent by defendant to the president of the

local lodge in Missouri. Defendant's con- | do business in Missouri, under the statutes stitution (division x, § c) reads that: "Upon of the latter, was bound by all the provisions receipt of the benefit certificate (from the home office) the president shall notify the candidate and he shall be initiated by the subordinate lodge at a regular or special meeting." Thus we have the certificate in the hands of the president of the Missouri local lodge and his notice to the applicant to attend for initiation. Manifestly the delivery of the certificate is intended to be made by the president to the member at such time and place.

of those statutes, and could not, by the insertion of any of the many clauses in its forms of application, etc., withdraw itself from the obligatory force of the statute. The contract of insurance, therefore, is a Missouri contract, and subject to the local law." A leading case on this subject is Equitable Life Society v. Clements, 140 U. S. 226, 11 Sup. Ct. 822, 35 L. Ed. 497, and it is in accord with Cravens v. Insurance Co. As the syllabus is, in some degree, mislead[4] The law is that the place where the ing in stating a condition as to acceptance of final act occurs which makes it a binding the contract in the foreign state which does contract is the place of contract, and, where not appear in the opinion, we quote: "The an insurance contract is not to become com- application declares that the contract 'shall pleted or fully executed until a payment of not take effect until the first premium shall a premium and delivery, the place of pay- have been actually paid during the life of ment and delivery will be the place of con- the person herein proposed for assurance.' tract, even though the contract should state The petition alleges that that premium and the place of the insurer's residence should two annual premiums were paid in Missouri. be deemed the place of contract. Cravens v. The answer expressly admits the payment of Insurance Co., 148 Mo. 583, 50 S. W. 519, 53 the three premiums, and, by not controvertL. R. A. 305, 71 Am. St. Rep. 628. In that ing that they were paid in Missouri, admits case the following is quoted from Fletcher v. that fact also, if material. Missouri Rev. New York Life Ins. Co. (C. C.) 13 Fed. 526: Stats. 1879, § 3545. The petition further "The defendant company was doing business alleges that the policy was delivered in Misin Missouri, with the privileges granted to souri; and the answer admits that the policy it here, when said insurance was effected. was, 'at the request of the said Wall, transIt may be that the formal acceptance of the mitted to the state of Missouri and was deproposed contract was, by the letter of the livered to said Wall in said state.' If this contract, to be consummated in New York. form of admission does not imply that the The broad proposition, however, remains, no policy was at the request of Wall transmitartifice to avoid which can be upheld. The ted to another person, perhaps the company's statutes of Missouri, for salutary reasons, agent, in Missouri, and by him there delivpermit foreign corporations to do business in ered to Wall, it is quite consistent with such the state on prescribed conditions. If, de- a state of facts; and there is no evidence spite such conditions, they can by the inser- whatever or even averment that the policy tion of clauses in their policies withdraw was transmitted by mail directly to Wall, or themselves from the limitations of the Mis- that the company signified to Wall its acsouri statutes, while obtaining all the ad- ceptance of his application in any other way vantages of its license, then a foreign cor- than by the delivery of the policy to him in poration can by special contract upset the Missouri. Upon this record, the conclusion statutes of the state and become exempt is inevitable that the policy never became a from the requirements of law. Such a prop-completed contract, binding either party to osition is not to be countenanced. The de- it, until the delivery of the policy and the fendant corporation chose to embark in business within this state under the terms and conditions named in the statute. It could not by paper contrivances, however specious, withdraw itself from the operation of the laws, by force of which it could alone do business within the state. To hold otherwise would be subversive of the right of a state to decide on what terms, by comity, a foreign corporation should be admitted to do business or be recognized therefor within the state jurisdiction. Each state can decide for itself whether a foreign corporation shall be recognized by it, and on what terms. Pri-1. REPLEVIN (§ 8*)-RIGHT OF ACTION-GENmarily, a corporation has no existence be- ERAL OR SPECIAL PROPERTY.

payment of the first premium in Missouri; and consequently that the policy is a Missouri contract and governed by the laws of Missouri."

It follows that the judgment should be affirmed. All concur.

ROSS v. MAY, STERN & CO. (St. Louis Court of Appeals. Missouri. March 5, 1912.)

yond the territorial limits of the state creat-general or special property in himself with To maintain replevin, plaintiff must show ing it, and, when it undertakes business be- respect to the goods sued for. yond, it does so only by comity. The defendant corporation having been permitted to For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

[Ed. Note. For other cases, see Replevin, Cent. Dig. $$ 45-68; Dec. Dig. § 8.*]

2. JUDGMENT (§ 743*)—RES ADJUDICATA-RE- | when the property in dispute shall be de PLEVIN-DEFECTIVE VERDICT. livered to the plaintiff therein, and the verWhere, in replevin to recover certain household furniture, the burden was on the dict and judgment are for the defendant in plaintiff in that suit to show general or special replevin, provide, substantially as follows: property in himself with respect to the goods, Section 7779 provides that, where the propand a general verdict was rendered for defendant, which was defective as a verdict in erty has been delivered to the plaintiff, and replevin for failure to find whether the defend- the finding is for the defendant, the justice ant had the right of property or the right of or jury shall find whether the defendant had possession only at the commencement of the the right of property, or the right of possessuit, and, if either, then to find the value of sion only at the commencement of the suit, the property and damages for withholding of the same, as required by Rev. St. 1909, §§ 7779, and if they find either in favor of the de7780, but judgment was rendered on the ver- fendant they shall also find the value of the dict, as rendered, and no appeal was taken therefrom, such judgment constituted a conclu- property, or the value of the possession, and sive adjudication between the parties as to such damages for withholding the property the defendant's right of property in the goods, as may be just. Section 7780, relating to and was therefore conclusive of that question the judgment which should be entered on in a subsequent action by the defendant in replevin against the plaintiff in that suit for such a state of facts, provides that the judg conversion of the goods. ment shall be against the plaintiff and the sureties for the return of the property, or that they pay the value so assessed in the discretion of the defendant, or the value of the possession of the same in case a return cannot be had, or shall not be ordered, and for the damages assessed and cost of suit.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1275-1277; Dec. Dig. & 743.*] Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by Mrs. George Ross against May, Stern & Co. Judgment for plaintiff, and defendant appeals. Affirmed.

H. A. Loevy, for appellant. R. G. Meigs and John B. Dempsey, for respondent.

In the suit in replevin with which we are now concerned, neither the verdict nor judgment conforms to the statutory requirements quoted. The jury returned a verdict in the NORTONI, J. This is an action in trover replevin suit as follows: "We, the jury, as for conversion. Plaintiff recovered, and find for the defendant." On this verdict, defendant prosecutes the appeal. The sub- the justice adjudged that plaintiff recover ject of the controversy is a small parcel of nothing from the defendant, and that the household goods, valued at something over plaintiff pay the costs of the action. No $100, and the question for consideration re- appeal was prosecuted from the judgment of lates to the fact that the court accepted and the justice in the replevin suit, and, notwithtreated a prior defective verdict and judg-standing the verdict for the defendant therement in replevin between the same parties, in, plaintiff here, the plaintiff therein, detouching the same subject-matter, as conclu- | fendant here, who had acquired possession of sive with respect to plaintiff's right of property and possession thereafter.

The evidence tends to prove that plaintiff owned the household goods in controversy; and that she had possession thereof at the time the replevin suit was instituted against her is not questioned. Defendant claimed to be entitled to the possession of the goods under a chattel mortgage which it held thereon for a portion of the purchase price. Under this claim, defendant instituted a replevin suit against plaintiff here, and the household goods involved were delivered to defendant by the constable under the writ in replevin. The replevin suit was instituted and tried before a justice of the peace. At the conclusion of the trial, the verdict and judgment therein were for the defendant in replevin, or the plaintiff in the present suit in conversion. But, though the verdict and judgment were for the defendant in the replevin suit before the justice, they were defective, when measured by the requirement of the statutes in such cases.

The statutes (sections 7779, 7780, R. S. 1909) concerning the verdict and judgment in replevin before a justice of the peace,

the property under the writ of replevin, continued to hold possession of the household goods, and this, too, after demand there for on the part of the present plaintiff, in whose favor the verdict and judgment in replevin were given. As the defendant, who was the plaintiff in replevin, refused to surrender the household goods to plaintiff, who was defendant in replevin, she instituted this suit in conversion for the value thereof. On the trial of the present suit, the plaintiff introduced evidence tending to prove that she owned the property, and that it was in her possession at the time defendant instituted the replevin suit against her. It was shown, too, that defendant took the property out of her possession under the writ of replevin, as above detailed, and still held it, notwithstanding the verdict and judgment therein in her favor. Plaintiff introduced the verdict and judgment in replevin in evidence, over the objection of defendant, and the court, by rulings on evidence and instructions to the jury, accepted such verdict and judgment in the replevin suit, though defective in form, as conclusive to the effect that defendant was not entitled to

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes