Anderson v. Merchants' & Mechanics' Mut. Aid Soc., 21804.

• Decision Date: 08 March 1932
• Docket Number: No. 21804.,21804.
• Parties: ANDERSON v. MERCHANTS' & MECHANICS' MUT. AID SOC.
• Court: Missouri Court of Appeals

46 S.W.2d 938

ANDERSON v. MERCHANTS' & MECHANICS' MUT. AID SOC.

No. 21804.

St. Louis Court of Appeals. Missouri.

March 8, 1932.

Rehearing Denied March 22, 1932.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

"Not to be officially published."

Action by J. F. Anderson against the Merchants' & Mechanics' Mutual Aid Society. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Spradling & Dalton, of Cape Girardeau, for appellant.

B. Hugh Smith, of Cape Girardeau, for respondent.

SUTTON, C.

This is an action on an insurance policy issued to the plaintiff by defendant on September 5, 1929, insuring plaintiff in the sum of $2,000 against loss or damage by fire or lightning covering on a brick building in Illmo, Mo. Illmo is not far from Cape Girardeau, where plaintiff resides. Defendant is a mutual assessment insurance society and insures property in Cape Girardeau county and adjoining counties.

The petition is conventional in form. The answer admits the execution and delivery of the policy, and sets up, by way of affirmative defense, the forfeiture of the insurance by reason of the failure of the plaintiff to pay an assessment levied against him. The cause was tried to a jury. At the conclusion of all of the evidence in the case, the court, at the instance of the plaintiff, gave to the jury a peremptory instruction, directing them to find in favor of plaintiff for the full amount of the policy, together with interest thereon. The jury accordingly returned a verdict in favor of plaintiff for $2,057, and judgment was given accordingly. Defendant appeals.

The giving of the peremptory instruction is assigned as error here.

The policy sued on provides that the policy shall be canceled at any time at the request of the insured, or by the company by giving five days' notice of such cancellation. It provides further that, if the insured fails to pay any assessment within thirty days after notice given, the insurance shall be suspended until such assessment is paid.

The constitution of the society provides that the management of the society shall be in the hands of three trustees, who must be members of the society, and that the trustees may enact by-laws, not in conflict with the constitution; that the trustees shall organize themselves for the transaction of business by electing one of their number as president, one as secretary, and one as treasurer; that, in case of loss by fire or lightning, the trustees shall meet and view, estimate, and adjust such loss, and assess the necessary assessment per $100 insured valuation, and levy such assessment and collect the same after notification; that the secretary shall give notification to all members who for any reason are under suspension; that all notices to members for payments of assessments must be given by postal card by the secretary; that each and every payment shall be made within thirty days from date of notice by postal card, and any member who refuses or neglects to pay his assessment within said time shall be suspended for the next thirty days, or until such assessment is paid to the secretary, but, if said payment is not made within said time, then the name of such member shall be canceled, provided that during the time of such suspension the insurance stops, until such payment is received by the secretary.

At the time the policy in suit was issued, defendant issued to plaintiff another policy for $2,000 covering on his residence in Cape Girardeau. On March 14, 1930, the defendant's secretary sent out notices by postal cards to its members, of an assessment to cover losses. The plaintiff received two of these notices, one of the notices was for $2 assessed on the policy covering his residence property, and the other was for $12 assessed on the policy in suit covering the Illmo property. The latter notice, however, erroneously designated the number of the policy as 3942, the correct number being 3947. The plaintiff failed to pay either of the assessments. On May 24, 1930, the Illmo property was destroyed by fire, on account of which this suit is brought.

Defendant excuses his failure to pay the assessment on the policy in suit on the ground that the notice he received was insufficient and illegal by reason of the erroneous designation of the number of the policy in the notice. We see no merit in this view. The notice was directed to the plaintiff, and specifically informed him that it was an assessment of 60 cents per $100 on his insurance, and that the assessment amounted to $12. It was but a simple computation to show that the assessment of $12 was 60 cents per $100 on a $2,000 policy, which is the amount of the policy in suit. We do not see how plaintiff could have failed to understand from this notice that the assessment he was called upon to pay was on this policy. The facts and circumstances tend to show that he did so understand it. It is true he testified that the reason he did not pay the assessment was because he referred to his policy and found that his policy was 3947, and the notice was for policy 3942, and that he supposed the notice was for somebody else, notwithstanding it showed on its face that it was for him. He testified further that the reason he did not pay the assessment on the policy covering his residence was because he was a...