ÆäÀÌÁö À̹ÌÁö
PDF
ePub
[blocks in formation]
[blocks in formation]

REHEARINGS DENIED

[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

KENTUCKY.

Auxier v. Auxier, 203 S. W. 310.

City of Ludlow v. Broderick, 203 S. W. 1082.
Commonwealth v. Adams Exp. Co., 203 S. W. 866.

L. E. Tierney Coal Co. v. Smith's Guardian, 203 S. W. 731.

TEXAS.

Gulf, C. & S. F. R. Co. v. Saint, 204 S. W. 1021.

See End of Index for Tables of Southwestern Cases in State Reports

[blocks in formation]

THE

SOUTHWESTERN REPORTER

VOLUME 205

the insured departed this life during the time

ZINKE v. KNIGHTS OF THE MACCA- that said benefit certificate was in force, and BEES OF THE WORLD. (No. 20723.) (Supreme Court of Missouri. In Banc. April Term, 1918. Rehearing Denied Sept. 7, 1918.)

1. ACCORD AND SATISFACTION TIAL PAYMENT-EFFECT.

10(1)-PAR

Where there is an honest doubt between the parties as to the amounts due, and the creditor yields to the debtor's views and accepts a part payment in lieu of the whole, and there is no fraud or other ground for equitable relief, the settlement is binding as an accord and satisfaction. (Per Woodson, Graves, and Walker, JJ.; Faris, J., concurring in result; Bond, C. J., and Blair and Williams, JJ., dissenting.)

2. ACCORD AND SATISFACTION

UISITES OF ACCORD-RECEIPTS.

11(1)-REQ

To establish an accord and satisfaction by the creditor's acceptance of a less amount than that which he claims to be due no receipt is necessary, nor even a specific agreement to accept such amount in full. (Per Woodson, Graves, and Walker, JJ.; Faris, J., concurring in result; Bond, C. J., and Blair and Williams, JJ., dissenting.)

that the association paid plaintiff the sum of $578.40, leaving a balance of $421.60 due plaintiff, which balance had been previously demanded and payment refused. From a judgment in favor of plaintiff in the justice court the defendant appealed. On a trial de novo in the circuit court before a judge and jury, a judgment was entered in favor of plaintiff and against the defendant in the sum of $421.60, and defendant in due course appealed.

of the Maccabees of the World, is a corpora"It is admitted that the defendant, Knights tion, successor to the Supreme Tent, Knights of the Maccabees of the World, and is a fraternal benefit association, organized under the laws of the state of Michigan and authorized to do business in the state of Missouri; that nand G. Zinke, its policy No. 20410, and that the defendant had issued, on the life of Ferdiat his death one assessment on the membership,

not exceeding in amount the sum of $1,000, tiff, Augusta M. Zinke, wife of the insured, was to be paid thereunder as a benefit to plainupon satisfactory proof of his death and the surrender of the said certificate; that one assessment on the membership of the defendant company at the time of the death of Ferdinand G. Zinke would have amounted to more than the sum of $1,000.

Certiorari to St. Louis Court of Appeals. "The application of the insured for memberAction by Augusta M. Zinke against the ship in the defendant order contained the folKnights of the Maccabees of the World. To lowing: I also agree that, should I commit review a judgment of the Court of Appeals, suicide in contravention of the laws of said Supreme Tent, whether sane or insane at the affirming the judgment for plaintiff, defend-time, that this contract shall be null and void ant brings certiorari. Judgment of the Court and of no binding force upon said Supreme of Appeals quashed.

Augusta M. Zinke brought a suit against the Knights of the Maccabees of the World to recover $421.60, the balance alleged to be due her on a benefit certificate issued by it on the life of Ferdinand G. Zinke, her husband. She recovered judgment for the amount sued for, and the defendant appealed the cause to the St. Louis Court of Appeals, which affirmed the judgment of the circuit court. After taking the proper preliminary steps, the petitioner applied to this court for a writ of certiorari, directed to the Court of Appeals, which was duly issued, and in due time return was properly made thereto. No point is made upon the pleadings, so they will be put aside. The facts are fairly stated by the Court of Appeals in the opinion written by it, which we here copy.

"Plaintiff instituted this action before a justice of the peace, by filing a statement in which she claimed that she was beneficiary in a benefit certificate issued on the life of her husband, Ferdinand G. Zinke, in the sum of $1,000, that

Tent.' This application and the laws of said Supreme Tent now in force, or that may hereafter be adopted, together with my certificate of membership, are made the contract between myself and the said Supreme Tent, and I for and be governed thereby.' myself and my beneficiary agree to conform to

"Section 379 of the by-laws of the defendant, in force and effect at the time of the decease be paid on account of the death of a member of the insured, provides that: 'No benefit shall who shall die by his own hand, whether sane or insane: Provided, however, that the beneficiary named in the life benefit certificate, or the person legally entitled to the benefit, shall receive an amount equal to twice the amount contributed to the life benefit fund by the member during his lifetime, but not in excess of the face of the certificate.'

"There is no controversy but that Ferdinand G. Zinke, the insured, paid the defendant association in monthly rates on said certificate up to the time of his death $289.20; that at the time of his death his dues to the association were paid, and that he was in good standing; that on or about the 5th day of June, 1913, some time after the death of the insured, the defendant association paid to Augusta M. Zinke, the plaintiff, the sum of $573.40, being twice the amount of the monthly rates con

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
205 S.W.-1

205 SOUTHWESTERN REPORTER

(Mo.

tributed to the life benefit fund by Ferdinand | to your husband's benefit insurance, has been G. Zinke during his lifetime.

"The record shows that the insured died on the 31st of March, 1913, and that the beneficiary, plaintiff herein, furnished the defendant preliminary proofs of death, consisting of her own affidavit, the affidavit of the attending physician, the verdict of the coroner's jury, affidavits taken at the coroner's inquest, and the sworn statement of the officers of the subordinate lodge of which the insured was a member. Each of these papers gave the cause of the death of the insured as suicide. The affidavit of the beneficiary contained the following: 'Date of death? March 31, 1913.' cause of death? 'Remote Had trouble with his head for about six weeks.' death? Not of sound mind; suicide.' The de'Immediate cause of fendant association, upon receiving the preliminary proofs of death, issued its check, payable to the beneficiary, in the sum of $578.40, which is admitted to be double the amount the insured had paid in during his lifetime. check, together with the receipt prepared by the This defendant association, was sent forward to the officers of the local lodge, which it appears was customary, with instructions to turn the same over to the plaintiff upon the execution of the receipt.

received, and in reply permit us to say that, of the Maccabees of the World, the laws proat the time your husband joined the Knights vided that in case of death by suicide, whether sane or insane, his beneficiary should be entitled to receive twice the amount he had contributed to the life benefit fund. paid you in April last. There is nothing more your due under the laws of the state of MisThis was souri, or under the laws of the K. O. T. M., a member of an association, acting together for or under any other laws. the purpose of providing life benefits or insurYour husband was ance at the least possible cost; other things they agreed that, if any of them and among ceive twice the amount he had contributed to should commit suicide, his beneficiary should rethe life benefit fund, but in no case to exceed the amount of the certificate. knowledge of what you are talking about, some rich man's beneficiary getting $8,000, and, if We have no bearing in a case like this. she did, or did not, it would not have any have been entitled to it. would very much prefer that your husband had She or he might The management paid it all. They have no interest in it, exdied in some other way, so they could have members themselves. cept to carry out the agreements made by the Respectfully yours, L.

E. Sisler, Supreme R. K.'

to the defendant, prior to the institution of this "It is admitted that the plaintiff gave notice suit, that the plaintiff did and would deny that the insured, Ferdinand G. Zinke, deceased, committed suicide, and that she claimed her statement in the original proof of death was roneous, and the result of mistake and misapprehension."

er

"It appears that plaintiff did not accept the check immediately, but consulted the officers of the local lodge and her attorney, and took the matter under advisement for some days. Plaintiff's attorney advised her 'that, if it should be found by a trier of the fact that suicide was the cause of her husband's death, that amount was all that was due under the policy. I advised her further that, if he had not committed suicide, the full amount, namely, $1,000, would be coming to her; also advised her concerning the necessary steps that it would take in order to test that question in the the opinion of the Court of Appeals is conCounsel for the petitioner contend that courts. I tried to put the whole facts and all trary and repugnant to the following cases: the circumstances before her for her decision as to whether or not she would accept the amount W. 48; McCormick v. City of St. Louis, 166 offered, or fight for the full amount of the poli-Mo. 315, 335, 65 S. W. 1038; Pollman Coal Scott v. Realty Co., 241 Mo. 112, 115, 145 S.

cy, $1,000.'

"It further appears that there was no communication between the plaintiff and the defendant, from the date that defendant company mailed the check for $578.40, together with receipt attached, to the officers of the local lodge. The receipt which plaintiff executed at the time she accepted the check, is as follows: 'Received from the Knights of the Maccabees of the World the sum of five hundred and seventy-eight and 40/100 ($578.40), that being twice the amount of monthly rates contributed to the life benefit fund of Ferdinand

G. Zinke, late a member of Tent No. 116, state
or province of Missouri, and the full amount
for which the Association is liable under its
laws governing suicide claims.
34275. Augusta M. Zinke, Widow and Bene-
Warrant No.
ficiary of Ferdinand G. Zinke.'

"Plaintiff signed the above receipt on the 7th
day of June, 1913, and thereafter, on the 21st
day of July, 1913, wrote a letter in German
to the defendant, of which letter the record
states a correct translation to be as follows:
'Gentlemen of the Maccabees; I ask again if the
Gentlemen of the Maccabees will pay the rest
of $400, which I can claim under the Missouri
law; if not, I will go to the courts.
rich people receive their money, where the hus-
Why can
band shot himself, and have received their mon-
ey of $8,000, and a poor woman, who is with-
out any help, shall be cheated? As my husband
was already at the edge of the grave, that which
he did, he did without knowledge, as he was
always afraid of death. Respectfully, Widow
Augusta M. Zinke.'

"On August 4th, 1913, the defendant, through the Supreme Record Keeper, mailed the following answer in reply to plaintiff's letter. Mrs. Augusta M. Zinke, St. Louis, Mo.-Dear Madam: Your letter of July 21st, in relation

W. 563. Co. v. City of St. Louis, 145 Mo. 651, 47 S. In addition to the facts stated, tending to prove that she never stated to the counsel for Mrs. Zinke introduced evidence notary or to any one else that her husband brain or heart trouble. The company, upon committed suicide; also that he died of the other hand, introduced evidence tending to show she did state that her husband committed suicide, and that that was the cause of his death.

petitioner. Durham & Durham, of St. Louis, R. P. & C. B. Williams, of St. Louis, for opposed.

above). [1] I. In our opinion the Court of WOODSON, J. (after stating the facts as Appeals has failed to follow the law as announced by this court in the cases cited. There can be no denial of the fact that a will not discharge the entire debt, even part payment of a debt unquestionably due though receipted in full, though based upon an understanding or agreement to that effect, for the reason that there is no consideration to support the agreement. But, as is an honest doubt between the parties as to was held by the cases cited, that where there the amount due, and after due consideration the creditor yields to the debtor's views, and agrees to and accepts the amount which

« ÀÌÀü°è¼Ó »