249 S.W. 650 (Mo. 1923), Wilson v. Brotherhood of Ameriacan Yeomen
|Citation:||249 S.W. 650, 297 Mo. 655|
|Opinion Judge:||RAGLAND, J.|
|Party Name:||EDGAR J. WILSON v. BROTHERHOOD OF AMERICAN YEOMEN, Appellant|
|Attorney:||Lehmann & Lehmann for appellant. James M. Rollins and Joseph Reilly for respondent.|
|Judge Panel:||RAGLAND, J. Woodson, C. J., dissents.|
|Case Date:||April 02, 1923|
|Court:||Supreme Court of Missouri|
Transferred from St. Louis Court of Appeals.
The main point involved in this case is as to whether or not the defendant, a fraternal beneficiary association, is entitled to interpose the defense of misrepresentation without having first returned or tendered to plaintiff the premiums received. (1) Defendant being a fraternal beneficiary association was exempt from the provisions of Secs. 6142, 6145, R.S. 1919, and it was not necessary for defendant to return or tender the premiums received as a condition precedent to interposing the defense of misrepresentation. Sec. 6401, R.S. 1919; State ex rel. National Council v. Trimble, 239 S.W. 467; Wilson v. Bro. Am. Yeomen, 237 S.W. 212; Hanford v. Massachusetts Benefit Assn., 122 Mo. 50. (2) The record shows that defendant was at all material times a fraternal beneficiary association, duly licensed to do business in this State under the provisions of Chapter 50, Article 15, R.S. 1919. (3) The contract sued on was one of fraternal beneficiary insurance, and did not constitute doing business on the assessment plan so as to deprive defendant of the benefit of the laws relative to fraternal beneficiary associations. Parker v. Sovereign Camp of Woodmen, 196 S.W. 424; Westerman v. Supreme Lodge Knights of Pythias, 196 Mo. 670; Watkins v. Brotherhood of American Yeomen, 188 Mo.App. 626; Morton v. Royal Tribe of Joseph, 93 Mo.App. 78; Dessauer v. Maccabees, 191 Mo.App. 76; Claudy v. Royal League, 259 Mo. 92; Tice v. Knights of Pythias, 204 Mo. 349; Secs. 6167, 6401, R.S. 1919. (4) Plaintiff's answers in his application for membership were strict warranties and their truth a condition precedent to his recovery, whether material or not. Valleroy v. Knights of Columbus, 135 Mo.App. 574; Claver v. Woodmen, 152 Mo.App. 164; Floyd v. Modern Woodmen of America, 166 Mo.App. 168; Daffron v. Modern Woodmen of America, 190 Mo.App. 316; Hoagland v. Modern Woodmen, 157 Mo.App. 15. (5) Plaintiff admitted a breach of warranty in his application, and therefore as a matter of law defendant is not liable. (6) Defendant being a fraternal beneficiary association, and so licensed to do business in the State of Missouri, Sections 6142 and 6145 are not applicable. Sec. 6401...
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