Basch v. Bankers' Life Co. Op Des Moines, Iowa

• Decision Date: 05 March 1918
• Docket Number: No. 15579.,15579.
• Citation: 201 S.W. 919
• Parties: BASCH v. BANKERS' LIFE CO. OP DES MOINES, IOWA
• Court: Missouri Court of Appeals

201 S.W. 919

BASCH v. BANKERS' LIFE CO. OP DES MOINES, IOWA

No. 15579.

St. Louis Court of Appeals. Missouri.

March 5, 1918.

Rehearing Denied March 20, 1918.

Appeal from St. Louis Circuit Court; Glendy B. Arnold, Judge.

"Not to be officially published."

Action by Emma A. Basch against the Bankers' Life Company of Des Moines, Iowa. From a judgment for plaintiff, defendant appeals. Affirmed, on condition that remittitur be filed, otherwise reversed and remanded.

I. M. Earle, of Des Moines, Iowa, and S. C. Rogers, of St. Louis, for appellant. Alfred Kehde and James J. O'Donohoe, both of St. Louis, for respondent.

BECKER, J.

This is a suit upon a policy of insurance in the sum of $2,000, issued on the 27th day of October, 1911, insuring the life of one August F. Rasch, in which the wife of the insured, Emma Rasch, was the designated beneficiary. The insured died on the 18th day of October, 1913, and this suit was instituted May 3, 1916. The cause was tried before the court and a jury and a Verdict returned in favor of plaintiff in the sum of $2,000, with interest thereon at the rate of 5 per cent. per annum from October 25, 1913, to the date of the rendition of such verdict, namely, November 3, 1916, which interest amounted to $302.50; the total verdict aggregating $2,302.50. From the judgment rendered upon such verdict, after unavailing motions for new trial and in arrest of judgment, the defendant prosecutes this appeal.

The plaintiff's petition is conventional. The answer, however, which covers more than 30 pages in the record, admits the issuance of the certificate of membership sued on, also that the death of the insured occurred on October 18, 1913, and that plaintiff gave notice of the death, and demanded payment of $2,040 under the certificate of membership, and that such demand was refused and nothing paid. The answer then sets up the fact that the defendant company is an assessment life insurance corporation organized under the laws of the state of Iowa, and is duly licensed by the insurance department of the state of Illinois to transact the business of an assessment life insurance company in such state, and that the contract upon which suit is brought is an Illinois contract made and delivered in the state of Illinois, and further states that the company charges no level premiums, and that the payment of benefits in said association is dependent upon the assessment against persons holding similar contracts. It then sets out the certificate of membership, which is in words and figures as follows:

                          "Certificate of Membership
                "No. 356874.                          $2,000.00
                "The Bankers' Life Association, Des Moines
                                  Iowa
                

"This is to certify, that in consideration of the articles of incorporation and by-laws of this association and of his application No. 292213, copies of all of which are indorsed hereon and expressly made a part of this contract, and the payment of sixty and no-100 dollars, Mr. August F. Rasch of Trenton, state of Illinois, aged 40 years, by occupation plumber, has been admitted to membership in this association, and that in the event of his death, while this certificate is in force and upon its presentation at the home office, due proof of death having been supplied by the beneficiary, this association will pay to Emma A. Rasch, wife of the member, the sum of two thousand dollars and the guarantee deposit made with the association by said member amounting to forty and no-100 dollars: Provided, that if within two years from the date of this certificate the member shall, whether sane or insane, die by his own act, the liability of the association shall be limited to the amount paid to it on account of said certificate.

"In the event of the death of the beneficiary prior to that of the member, or in case none is named, the benefit is to be payable to the administrator or executor of the deceased member for the benefit of his estate. Unless otherwise expressly provided, each beneficiary surviving the member shall share equally in the entire benefit.

"The amount due under this contract is to be provided by assessments levied upon each member in proportion to his contribution to the guarantee fund, unless otherwise supplied.

"This certificate is issued and accepted as a quarterly renewable term contract between the member and this association, and shall not take effect until received by him while in good health. Payments shall be due quarterly on the 1st day of January, April, July, and October of each year and the first quarterly payment hereunder will be due on April 1, 1912. The member has the option of renewing this contract for each quarter succeeding the dates above named by payment in advance therefor, at the home office or a depository of the association, on said dates. This certificate shall continue in force only during the term for which payment has been made, but a grace of one month is allowed during which each quarterly payment may be made and during which the insurance shall remain in force.

"Upon the failure of the member to make any payment due from him to the association by the end of said month of grace, his guarantee deposit and all other payments made shall thereby be forfeited and his membership shall thereupon cease without action by the association.

"This certificate shall be incontestable after two years from its date, except for failure of the member to make the payments provided in this contract.

"No agent or solicitor has the power to waive any conditions of or modify this contract of membership.

"In witness whereof the association has caused this certificate to be signed by its president or vice president and attested by its secretary or assistant secretary with the corporate seal of the association on this 27th day of October,

                1911.                  E. E. Clark, President
                

"[Seal.] G. W. Fowler, Assistant Secretary."

The answer also sets out the articles of incorporation and amendments thereto, the by-laws, the application of said August F. Rasch for membership in the association, and the answers made by said applicant to the association's medical examiner. Then follows a statement that on the 23d day of March, 1913, the board of directors of the defendant association duly passed a resolution making an assessment of 14 per cent. levied upon the assessment membership of the company, which assessment, "Call 120," became due and payable on the 1st day of April, 1913, and that a grace of one month was allowed for the payment thereof: that in conformity with said resolution, on the 24th day of March, 1913, due notice of such assessment was mailed to the said August F. Rasch of Trenton, Ill., as follows:

"The Bankers' Life Association.

                "40-356974 Home Office, Des Moines, Iowa
                                           "March 24, 1913.
                

"August F. Rasch, Trenton, Ill.—Sir: This is to notify you that a levy has been made upon the assessment membership of this company for 14 per cent. based pro rata on the amount of the guarantee fund of such membership, for the purpose of providing benefit fund for death losses, no part of which can be used for expenses.

                Your proportion for the benefit fund is....... $ 5.60
                The interest accrued upon your guarantee note
                to April 1, 1913, for the reserve fund is....     .80
                And one installment on the principal of your
                note for the guarantee fund..................   10.00
                                                                _____
                Total ........................................ $16.40
                

"When more than one certificate is included herein an equal proportion of the above total is payable on each. This sum is due April 1, 1913, and payable only to this company at its home office or to a depository bank. One month's grace is allowed so that payment may be made on or before May 1, 1913. If not made by that date your membership and insurance will thereby cease without action by the company.

                         "Bankers' Life Company,
                            "By G. S. Nollen, Secretary."
                

"1. If paid at a depository bank, this notice should be stamped `Paid' by the banker, and will then be your voucher for the amount. Ask him at the same time to stamp and mail the inclosed postal card to notify us of the credit.

"2. Banks are not authorized to receive money on this call after May 1, 1913. See other side.

"3. Payments to banks not acting as depositories by appointment of this company will not be recognized and if no authorized depository is convenient, members must remit full amount to the home office.

"4. Remittances by mail should be by draft or money order, payable to Bankers' Life Company, but the same shall not constitute payment unless actually received at the home office by the 1st day of May, 1913, in compliance with this notice."

The answer further sets up that the item of $10 appearing in the call, as well as the 80 cents interest item therein, were each a proper charge in such call for the reason that said Rasch at the time of the issuance of the certificate of membership in question did not pay the $40 guarantee deposit required, in money, but executed in lieu thereof his note under the terms of which note one-fourth thereof, namely, $10 became payable to the April, 1913, call, as did the interest upon the note to said date which amounted to 80 cents; that under and by the terms of section 9 of the by-laws (the entire by-laws being set out in full, as previously stated in the answer, supra, which by-laws are made part of the certificate sued on)—

"the failure of any member to pay his assessment or expense dues or note within the time and at the place required, his membership shall be thereby forfeited and his right to any share or interest in the funds or property of the association, including his guarantee deposit, shall cease absolutely at the expiration of the time stipulated in which such payments are required to be made, and all payments made are thereby forfeited to the association without action on its part,...