This is an action for breach of a contract for life insurance, brought by plaintiff on a petition alleging that defendant refused to accept the monthly assessment required by the terms of the contract; that such refusal constitutes a repudiation of the contract justifying plaintiff to rescind the contract and to recover assessments theretofore paid as for money had and received.
The answer, fully discussed hereinafter, admits the issuance of the certificate; alleges that plaintiff lost his membership and forfeited his rights to all payments and assessments made by him theretofore. Plaintiff challenged the answer by general demurrer which the court sustained. Defendant declining to plead further, the court rendered judgment for $288, the amount admitted by the answer as having been paid by plaintiff to the defendant, including interest. From this judgment defendant has appealed.
The petition alleges that defendant is a voluntary association and as such insures the lives of its members; that in April, 1904, defendant issued a beneficiary certificate or insurance policy to plaintiff which provided for a monthly payment of $1.50 and named plaintiff's mother as the beneficiary; the face of the policy was for *Page 661 $1600; that plaintiff paid the monthly installments regularly up to April 30, 1920, but that on that date he tendered his assessment and defendant refused to accept same, disclaiming any liability under said certificate of insurance. It is then alleged that such refusal to accept payment was unjustifiable and unlawful and that plaintiff had paid 192 monthly instalments, for which judgment is prayed.
Defendant's answer, as amended, admits that it is a voluntary association and engaged in insuring the lives of its members, and that it issued the beneficiary certificate referred to in the petition; admits that plaintiff made and defendant declined the tender of the assessment on the day named; that plaintiff had paid former assessments as set out in the petition, but denies that the refusal to accept this payment was in repudiation of its contract with the plaintiff, and denies that plaintiff complied with his contract or that defendant unjustifiably or unlawfully refused to accept the tender.
The answer pleads certain sections of defendant's constitution and by-laws, from which it is averred the refusal to accept the assessment is justified.
First is the preamble of the constitution which designates the purpose of the defendant Brotherhood as an unincorporated association and limits the membership to railroad trainmen, a class of persons engaged in a hazardous calling. Section I of the constitution provides for a lodge system; provides that no profit is to be made, but that a monthly assessment of members is to be made from which benefits are to be paid in case of death. The answer then sets out sections 6, 9, 42, 43, 44, 79, 85 and 86 of the constitution, and numbers 8, 9, 10 and 11 of the general rules.
Section 6 defines the authority of the Grand Lodge.
Section 9 defines the authority of the president of the Grand Lodge, and in part is as follows:
"He shall be empowered to adjust all grievances referred to him in conformity with the General Rules. He shall interpret all laws pertaining to the Brotherhood *Page 662 and shall decide all controversies or appeals referred to him by subordinate lodges or members thereof. Such decisions shall be final, unless reversed by the Board of Directors at their first meeting after such decisions have been rendered. . . . He shall have power to suspend or remove any subordinate lodge officer for a sufficient cause. . . . He may issue dispensations not inconsistent with this Constitution to facilitate the business of the Brotherhood."
Section 42, so much as is here pertinent, follows:
"The charter of any subordinate lodge may be suspended or revoked by the president of the Grand Lodge for any of the following reasons: Improper conduct, refusal or neglect to conform to the Constitution and General Rules and regulations of the Brotherhood; neglecting or refusing to make its returns and reports; . . . for neglecting or refusing to bring an officer or member to trial when directed to do so by the president; or for failing to impose the penalties provided for by the Constitution on members convicted of any misdemeanor . . . but the charter shall not be suspended for any of the foregoing reasons until the lodge has been notified and an opportunity given to answer charges made against it. Should a lodge refuse to answer charges made against it, the charter shall be suspended or revoked as the president may determine."
Section 43 provides that a lodge shall become defunct if the charter of same has been surrendered or reclaimed.
Section 44 provides that a member of a defunct lodge may be granted a dispensation to join another lodge upon application to the president of the Grand Lodge, such dispensation to be treated as a card of withdrawal when presented to a lodge for admission.
Section 79 provides that the constitution and general rules shall govern all beneficiary certificates already issued or to be issued.
Section 85 provides that the constitution and general rules shall be interpreted according to their "most *Page 663 plain and obvious meaning," doubts arising to be decided by the president of the Grand Lodge.
Section 86 provides for the changing of the constitution and general rules by the Grand Lodge.
The general rules pleaded, in substance, are as follows: Numbers 8, 9 and 10 provide for a method for members of the organization to take up and adjust grievances with their employers by amicable conferences. Rule No. 10 provides also that the president of the Grand Lodge, with certain other officials, shall have authority to appropriate the funds of the organization necessary to prosecute strikes.
General Rule No. II, about which much of this controversy hinges, is as follows:
"Any member or members inciting a strike, or participating therein, except as provided in general rule No. 10, shall, upon conviction thereof be expelled. The lodge under whose jurisdiction an unauthorized strike occurs shall, within ten days thereafter, cause charges to be preferred against any and all members engaged in such strike. While under charges for engaging in an unauthorized strike no member shall be granted a traveling, transfer or withdrawal card. If within ten days the lodge does not cause charges to be preferred against members engaged in the unauthorized strike, the charter of the lodge may be revoked by the president of the Grand Lodge, who may transfer to other lodges the members not participating in such strike."
The answer, reverting again to the constitution of the lodge, sets out section 74, which, in part, is as follows:
"No claim shall be paid by the General Secretary and Treasurer unless the member to whom the certificate was issued was in good standing on the grand register at the time of his death. . . ."
Section 123 of the constitution:
"Membership by dispensation may be gained by depositing a dispensation from the president of the Grand Lodge, which shall be received and acted upon in accordance *Page 664 with the laws governing admissions by withdrawal cards."
Section 157 provides for application for withdrawal cards and the granting thereof.
After setting out the above provisions of defendant's laws, the answer alleges that plaintiff prior to April 8, 1920, was a member of Lodge No. 472, located in the City of St. Louis, and as such was subject to the laws and rules of the defendant association; that the defendant on February 1, 1918, entered into an agreement with the Terminal Railroad Association of St. Louis with respect to hours and wages, etc. It is alleged that this schedule was not to be changed except on thirty days' notice from either party; that plaintiff, a member of the St. Louis lodge and in the employ of said railroad association as trainman, together with the other members of the subordinate lodge, withdrew their employment from said railroad and engaged in an unauthorized strike contrary to the aforesaid agreement.
It is then alleged that this subordinate lodge was notified by the president of the Grand Lodge to terminate the strike and that a failure to do so would result in the withdrawal by the president of its charter; that plaintiff and the other members refused to desist in the strike, and as said subordinate lodge failed and refused within ten days to cause charges to be preferred against plaintiff and such members of the lodge, as required by general rule No. 11, the president of the Grand Lodge under such rule No. 11 revoked the charter, and under section 43 of the constitution of the order said lodge became defunct.
The answer further alleges that the president of the Grand Lodge under sections 9 and 85 of the constitution "did interpret said Constitution, Laws and General Rules and decided that General Rule No. 11 was the only law and rule applicable to the emergency caused by the said unauthorized strike . . . and the failure and refusal of the said Lodge 472 to prefer charges against the said plaintiff and said officers and members, and that *Page 665 said general rule No. 11 was intended to and did give the said president full power and authority to revoke and reclaim the charter of any subordinate lodge which should fail and refuse to prefer charges against its members engaging in such unauthorized strike within ten days after having its attention directed thereto in writing by said president." The answer avers that such interpretation had been given the laws of the organization for many years and were accepted and acquiesced in by the Grand Lodge and subordinate lodges; that the subordinate lodge had been notified that the charter had been withdrawn, giving the reasons therefor and directing plaintiff and the other members of the subordinate lodge to apply for dispensation and transfer in accordance with section 44, supra; that plaintiff failed to fill out and return any application for such transfer.
Finally, it is charged that plaintiff therefore was not at the time named in the petition a member in good standing; that he had forfeited his membership and all rights under the laws of the order, and that his beneficiary certificate is null and void.
We are met at the outset with a disputation of counsel as to a proper classification of the defendant association. Defendant, appellant here, insists that it is exempt from the general insurance laws of the State under section 6398, Revised Statutes 1919, which defines and exempts fraternal benefit societies from the general insurance laws, and that since the membership in the organization is limited to those of hazardous occupation, it is exempt from the provisions of the fraternal beneficiary insurance statutes of the State, and therefore, it is argued, the contract of insurance in this case must be construed not more strongly against the appellant but in accordance with the fair and reasonable meaning and intention of the parties as expressed in the contract.
The defendant organization is, as it appears, first a trade union, or labor organization, and with that feature we are not here concerned, but as such it issues to its members contracts known as certificates for benefits to be *Page 666 paid to a beneficiary in case of death of the insured member. The organization insures the lives of its members for a specific sum to be paid as a monthly assessment. The contract between the plaintiff and the defendant, if a contract at all, is one for insurance. It is an obligation to pay the beneficiary of the certificate a certain sum of money in the event of the death of the insured. We hold that if this contract is reasonably open to two constructions, the one most favorable to the insured must be adopted, whatever the classification of the defendant may be in the calendar of fraternal organizations. [Mathews v. Modern Woodmen, 236 Mo. 326, 139 S.W. 151; Cunningham v. Union Cas. Surety Co., 82 Mo. App. 607; Sonders v. Commonwealth Cas. Co., 246 S.W. 613; Stix v. Indemnity Co., 175 Mo. App. 171,157 S.W. 870; Still v. Insurance Co., 185 Mo. App. 550, 172 S.W. 625; 1 Joyce on Insurance (2 Ed.), 574, 575, 581.]
There is ample authority in this State for the principle that if the payment of an assessment on an insurance contract is refused and the insurer refuses to perform its contract, then the insured has the right to rescind the contract and sue to recover the assessments or premiums paid. [McKey v. Phoenix Ins. Co.,28 Mo. 383; Tutt v. Covenant Mutual Life Ins. Co., 19 Mo. App. 677; Suess v. Life Ins. Co., 64 Mo. App. 1.]
Plaintiff and the other members holding insurance certificates in defendant organization have a property right growing out of such contract which cannot be taken away from such members except for a forfeiture expressed in the contract of the laws of the order applying thereto.
Defendant's answer relies upon expulsion; the answer must therefore show some definite affirmative action by defendant taken in strict accordance with its laws to destroy such right. There must be alleged some law of the order under which plaintiff could be and was expelled which carried with it a forfeiture of his rights under the certificate.
Now, it is contended by appellant that plaintiff was *Page 667 expelled and accordingly lost all rights in this policy because the president of the organization revoked the charter of the local lodge for misconduct of the lodge in relation to a strike, and because this plaintiff did not in time make application to join some other subordinate lodge. Under Rule No. 11, supra, it is provided that if a member engages in an unauthorized strike he "shall, upon conviction thereof, be expelled." Conviction carries with it the necessity of filing charges and affording the accused an opportunity to be heard. Plaintiff was not confronted with charges, nor was he tried for engaging in an unlawful strike. This rule (11), as will be seen, does not provide a penalty to be imposed on the offending member, even after conviction, to the extent that his life insurance contract shall be forfeited.
It is against the policy of our law to allow an insurance company or a society issuing insurance contracts to arbitrarily forfeit without a trial or opportunity to defend a contract of insurance issued by same, for the rights of such policy or certificate holders stand on contract and one that embraces a property right. Where the expulsion carries a defeat of the insurance with it, the member of the organization must be afforded every opportunity to protect his rights unless such right is denied by the contract or laws of the organization made a part of the contract. [Ludowiski v. Polish Roman Catholic, etc., Society, 29 Mo. App. 337; Slater v. Supreme Lodge,76 Mo. App. 387; Golden Star Lodge v. Watterson, 158 Mich. 696,123 N.W. 610; Swaine v. Miller, 72 Mo. App. 446.]
It should be observed that in the instant case neither the certificate, which is referred to as being in usual form, nor the organization's constitution or by-laws, provides for an ipsofacto expulsion of a member who engages in an unlawful strike. Nor does the constitution and laws of the organization provide a penalty if a member of a defunct lodge fails to apply or join another subordinate lodge, although provision is made in case of non-payment of assessments, fixing a penalty of ipso *Page 668 facto suspension, and no provision is made for the payment of assessments by the members of a defunct lodge.
Learned counsel for respondent in their brief set out section 144 of the constitution of the order, which provides for a trial of a member before expulsion may follow. However, such is not in the pleadings and is not before us.
The president of the Grand Lodge has interpreted Rule No. 11 to mean that he possessed the power to revoke the charter of the lodge without notice in case of an emergency, and that all members therein became expelled by such action. Leaving aside the rule requiring trial which respodent says is omitted from the defendant's answer, we cannot escape the conclusion that Rule No. 11 contemplates notice, charges and a trial, and the view is not justified that the president has the power to construe this rule to mean that conviction may be arbitrarily made by him without any notice to the member. But, as said before, the rule nowhere provides that in the event a member fails to make application after his lodge becomes defunct he is thereby ipso facto suspended, as obtains in the event such member fails to pay his assessment. Section 42 of the constitution, which seems to cover the matter of suspension of lodges and the revocation of lodge charters, definitely provides for notice and trial, but this section was not depended upon the president of the Grand Lodge in this case.
Learned counsel for appellant in his reply brief concedes the following:
"It is true that the laws of appellant association do not specifically state in so many words that a member forfeits all his rights `ipso facto' by participating in an `unauthorized strike.' It is also true that the laws do not specifically state in so many words that a member whose lodge has lost its charter loses all rights by failing to transfer within thirty days, but the intention of the parties in this case is so obvious and clear that such provisions would not have made it any clearer."
Counsel, however, clings to the argument that because *Page 669 defendant is not an insurance company, nor an "ordinary fraternal beneficiary association," that therefore the contract should be construed to mean that a member forfeits all his rights, including his insurance rights "ipso facto" by participating in an unauthorized strike. We are not disposed to substract the force of a single word from the constitution and laws of the order. We are not authorized, however, in this suit, which involves the construction of a policy or certificate for life insurance, to resolve a doubt in favor of the insurer and against the insured. The converse is true. The contract does not, and so appellant's counsel admits, provide "that a member forfeits all his rights ipso facto by participation in an unauthorized strike," and we are not permitted to read such provision into the contract. We must in this character of case be able to put our finger on some provision of the contract, with the constitution and rules of the organization drawn in, which clearly gives the right to forfeit this certificate, and, further, it must definitely appear that such forfeiture of the rights under the policy was in fact regularly consummated by the defendant.
It does not follow that because the charter of the local lodge was revoked, or because plaintiff had been deprived of the right to participate in the meetings of the order that plaintiff has not certain rights under his certificate of insurance, and that such rights may not be protected by the courts. [Crutcher v. Order Railroad Conductors, 151 Mo. App. 622, l.c. 630,132 S.W. 307.] We have examined the other points made by learned counsel for appellant, and conclude they are not well founded.
We hold that the court below properly ruled the plaintiff's demurrer, as defendant's answer does not in our opinion set forth facts sufficient in law to constitute a defense to plaintiff's cause of action. Accordingly the judgment is affirmed. Allen,P.J., and Becker, J., concur. *Page 670