Boyce v. Royal Circle

• Decision Date: 16 February 1904
• Citation: 79 S.W. 495,104 Mo. App. 528
• Parties: BOYCE et al. v. ROYAL CIRCLE.
• Court: Missouri Court of Appeals

79 S.W. 495

104 Mo. App. 528

BOYCE et al. v. ROYAL CIRCLE.

St. Louis Court of Appeals. Missouri.

February 16, 1904.

INSURANCE—BENEFIT CERTIFICATE — ASSESSMENTS—PAYMENT — FORFEITURE — INSTRUCTIONS—FINDINGS—CONFLICTING EVIDENCE—APPEAL.

1. Where, in an action on a benefit certificate, defendant claimed a forfeiture for nonpayment of assessments and per capita tax within the time required, it was proper for the court to charge that if the local secretary of the association notified H., who had previously paid the member's assessments, that such secretary would receive no further payments on the certificate unless a health certificate accompanied the payment, the order could not claim a forfeiture of the policy for nonpayment of subsequent assessments and tax, if the jury found the assessments and tax had been previously paid without default, so that no health certificate was required.

2. A finding that assessments and per capita tax on a benefit certificate had been paid prior to a forfeiture declared by insurer, based on conflicting evidence, is conclusive on appeal.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Action by Katie Boyce and another against the Royal Circle. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Edwin S. Puller and Covert & Covert, for appellant. Lamar, Barton & Lamar and W. L. Hiett, for respondents.

GOODE, J.

This case was here on a former appeal, and will be found reported in 99 Mo. App. 349, 73 S. W. 300. The record at that time was in a very incomplete state, and showed practically no evidence for the plaintiffs except the certificate of insurance and a section or two of the constitution. So far as we could gather, no proof was offered by the plaintiffs that they had paid the per capita tax for the latter half of the year 1900, or some of the monthly assessments. The constitution and by-laws provided for an assessment of 50 cents a month on each member of the class to which the deceased belonged, and also for a per capita tax of $1.50 a year, to be paid semiannually in June and December. As will be seen by the statement in the former opinion, the failure of a member to pay either of those dues within the months they were payable terminated the membership. A member had the entire month for which an assessment was due to pay it in, and could pay his per capita tax at any time during June and December. If he failed to pay, according to the by-laws he lost his insurance, and could only obtain its reinstatement on a certificate signed by himself that he was in good health; or, if he was in default for more than 30 days, on a certificate signed by the local medical examiner. At the first trial there was a peremptory instruction to find a verdict for the plaintiffs; apparently on the assumption that it was the duty of the order to make a levy each month of the assessment, and to make a levy twice a year of the per capita tax, and that a member owed nothing until a levy was made and notice of it given. On whatever theory the peremptory instruction was granted, we held it to be erroneous, and returned the case for another trial. There is a complete transcript of all the evidence taken at the second trial before us now, containing the testimony of Minnie Henderson, sister of the deceased, Thomas J. Henderson, the party insured, as to the payment, or offer to pay, his dues, as they accrued. She testified positively to paying or tendering various monthly dues during the months they matured, and also to tendering the semiannual per capita tax...