Easter v. Brotherhood of American Yeomen

• Decision Date: 13 February 1911
• Parties: EASTER v. BROTHERHOOD OF AMERICAN YEOMEN.
• Court: Missouri Court of Appeals

135 S.W. 964

154 Mo. A. 456

EASTER v. BROTHERHOOD OF AMERICAN YEOMEN.

Kansas City Court of Appeals, Missouri.

February 13, 1911.

Rehearing Denied April 3, 1911.

1. CONTRACTS (§ 127)—LEGALITY—OUSTING COURTS OF JURISDICTION — INSURANCE — PROVISION FOR ARBITRATION.

The provision in a mutual benefit insurance policy that no suit should be maintained on it until the board of arbitration had failed to settle the difficulty is a nullity as an attempt to oust courts of their jurisdiction.

2. INSURANCE (§ 818)—MUTUAL BENEFIT INSURANCE — ACTIONS — EVIDENCE — ADMISSIBILITY.

Where a mutual benefit insurance policy provided that insured should pay a monthly sum and such other assessments as the board might assess for mortuary benefits, the insurer should have been allowed to prove that the insured had failed to pay the monthly sums without proof of any assessment by the directors.

3. INSURANCE (§ 750)—MUTUAL BENEFIT INSURANCE —MONTHLY DUES—DEFAULT.

By virtue of Rev. St. 1899, § 7903, providing that an assessment insurance policy may be avoided for breach of its condition, a condition in an assessment policy that, if the insured shall become delinquent by failure to pay his monthly dues, he shall be suspended, and the certificate shall be void, will be enforced even though a forfeiture.

4. INSURANCE (§ 818)—MUTUAL BENEFIT INSURANCE —NATURE OF ASSOCIATION—"FRATERNAL INSURANCE COMPANY."

Where an insurance association was organized as a fraternal insurance company under the laws of Iowa, which provide that no fraternal association shall issue any certificate of membership to persons under 15 years or over 65, or unless the beneficiary shall be the husband, wife, relative, legal representative, heir, or legatee of such member, and hence was not a fraternal insurance company within the statutes of Missouri, where it was doing business, providing that a fraternal insurance association may make payment of benefits only to the family heirs, blood relations, affianced husband, or wife or persons dependent on the members, and in a suit on a policy the insurance company

alleged the foregoing facts showing it not to be an insurance company, the laws of Iowa were admissible to show what kind of an insurance company it was, even though the insurance company had alleged that it was a fraternal association and the court had held it to be an assessment association, for the pleadings should be interpreted in accordance with the facts alleged and not with the pleader's conclusions of law.

5. INSURANCE (§ 791)—MUTUAL BENEFIT INSURANCE —BENEFITS—STATUTES.

A condition in a mutual benefit insurance policy that, should a member die before living out his expectancy of life, a certain amount shall be deducted from the payment and paid into the reserve fund, is invalid under Rev. St. 1899, § 7903, providing that the exact amount of the insurance shall be paid to the beneficiary upon the death of the insured.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by Agnes Easter against the Brotherhood of American Yeomen. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

E. C. Corry and Aleshire & Gundlach, for appellant. Fyke & Snider and E. W. Shannon, for respondent.

BROADDUS, P. J.

This action is based on a certificate of insurance issued by defendant claiming to be a fraternal benefit association organized under the laws of the state of Iowa and doing business in Missouri. The plaintiff sues as the wife of Elmore W. Easter, deceased. The policy was issued on January 8, 1904, and the insured died on August 10, 1907. The petition, after alleging these facts, the amount of the policy, and the refusal of defendant to pay the same on demand, alleges that the "said Elmore W. Easter died, and this plaintiff has complied with all the conditions of said policy required to be performed," etc. The answer in the first paragraph admits that plaintiff is the wife of said Elmore W. Easter, deceased; that it issued the policy as alleged; and that the said Elmore W. Easter died on the 10th day of August, 1907. Second. "Defendant denies each any every allegation contained in plaintiff's petition not specifically set out in paragraph 1 herein." The answer then proceeds to recite: That defendant is a fraternal beneficiary society organized under a certain chapter of the laws of Iowa, and as such is authorized to do business in this state. That "it collects monthly payments from its members, to provide for benefits in case of death or disability." That, among other things, the policy or certificate in suit provided that, if the said insured should be delinquent in the payment of dues to the association, the certificate should become null and void; and that the insured had become delinquent in his payments due the association for the month of March, 1906, and each month thereafter, and was delinquent at the time of his death, and had previously thereto abandoned his membership in the defendant's order. That one of the provisions of the by-laws referred to in the certificate was that: "The rates of payments for benefits shall be monthly payments for separate ages and the amount of insurance, as set forth in the following table of rates," etc.:

                   Age.                    $500.  $1,000.   $2,000.   $3,000
                18 to 28, inclusive.....   .45      .60      1.10      1.60
                29 to 33, inclusive.....   .45      .65      1.15      1.75
                34 to 37, inclusive.....   .45      .70      1.25      1.90
                

That the by-laws provide that above amounts shall be collected every month and remitted to the chief correspondent of the association. That said by-laws provide that any member who fails to pay the regular payment, including dues, shall ipso facto stand suspended. Further as a partial defense defendant alleges: that it is provided in said certificate "that should the said member die before having lived out his expectancy of life, based on his age entry according to the American Experience Table of Mortality, there shall be paid into the reserve fund of this association out of the proceeds of this certificate, otherwise payable to the beneficiary, a sum equal to the amount of ten assessments per year, at the rate last paid by the member for the unexpired period of the life expectancy, based on his age of entry"; that deceased not having lived out his life expectancy, which as shown by said mortuary table was 30.4, of which period he lived 2 years and 2 months; and that in any...