Reichenbach v. Ellerbe

• Decision Date: 08 May 1893
• Citation: 22 S.W. 573,115 Mo. 588
• Parties: REICHENBACH v. ELLERBE.
• Court: Missouri Supreme Court

22 S.W. 573

115 Mo. 588

REICHENBACH v. ELLERBE.

Supreme Court of Missouri, Division No. 1.

May 8, 1893.

MUTUAL BENEFIT INSURANCE — ACTION ON CERTIFICATE — ASSESSMENTS.

Where, in an action against a mutual benefit association on a certificate issued by defendant to plaintiff's husband, payable to her on his death, it appeared that such certificate provided that a failure to pay an assessment within 20 days after notice thereof should forfeit it, and plaintiff's husband died on the last day within which payment of an assessment, of which due notice had been given him, could be made, without paying such assessment, no recovery could be had; evidence that defendant's officers had permitted him to pay prior

assessments after the expiration of time for payment not showing a waiver of prompt payment of the assessment which he failed to pay.

Appeal from St. Louis circuit court; Daniel Dillon, Judge.

Action by Clara Reichenbach against C. P. Ellerbe, superintendent of insurance, in charge of the assets of the United Masonic Benefit Association, to recover on a certificate of membership issued by such association to plaintiff's husband, for her benefit. There was a judgment for plaintiff, and defendant appeals. Reversed.

Phillips, Stewart, Cunningham & Eliot and Huff & Hereford, for appellant. Martin & Bass and H. A. Loevy, for respondent.

BRACE, J.

This is an appeal from a judgment of the circuit court of St. Louis for $2,000 and interest, in favor of the plaintiff, against the United Masonic Benefit Association of Missouri, successor of the Masonic Mutual Benefit Society of Missouri, on a certificate of membership, No. 2,499, issued by said society on the 2d day of January, 1883, to William Reichenbach, the deceased husband of the plaintiff, for her benefit, by the terms of which, under the by-laws of the association, she was to become entitled to that amount upon the death of her said husband, "upon condition, however, that if the said William Reichenbach shall fail to pay any assessment when the same becomes due and payable by him according to the by-laws of this society, and the terms of this certificate, then this contract and agreement shall be null and void, and of no effect whatever, and the said Wm. Reichenbach and the beneficiary therein shall forfeit all rights accruing under this certificate," which certificate was issued by the society, and accepted by the holder and beneficiary, upon the following express conditions and agreements, also therein set out: "First, that the same is issued and accepted subject to the provisions of the articles of association and by-laws; second, a printed or written notice, directed to the address of each member, as it may appear at the time on the books of the society, and deposited in the post-office, or delivered by an agent of the society, shall be deemed sufficient notice; third, due notice must be given to the society by each member of his change of residence or post-office address, when such change occurs." The defense was forfeiture of the benefits of the certificate by failure to pay an assessment. It appeared from the evidence that on the 11th of July, 1888, an assessment for death losses was duly made, under the by-laws of the association, upon the member to which certificate No. 2,499 belonged; that notices of this assessment were made out and authenticated by the proper officers of the association, and in the form required by the by-laws, for all the members of the class to which this certificate belonged; that they were addressed to such members, severally, according to their post-office address, as it appeared upon the books of the association, in which books the name and post-office address of the said William Reichenbach appeared; that such notices, and the envelopes in which they were contained, were compared and checked with the list in the book in a double form, for the purpose of avoiding errors, and on the 20th day of August, 1888, were duly stamped, and posted in the United States post-office at St. Louis. The by-laws in respect of such notices provided that "at the close of every month, or as soon as shall be deemed advisable, the secretary shall send by mail, to the post-office address of each member of the association, in which death or deaths have occurred during the month, a notice or notices giving the name of the deceased member or members, and the lodge to which he or they belonged, and the assessment due from each member to whom such notice is sent; or the secretary may employ a member of the association, in any town or city where members reside, who shall serve such notice or notices, either personally or by mail, or by giving verbal notice of such assessment, which notice or notices, sent, served, or given, shall be deemed and taken to be lawful and sufficient notice for the payment of the assessments so called for and required; and any member failing to pay such assessments...