Francis v. Supreme Lodge A. O. U. W.

• Decision Date: 12 July 1910
• Citation: 150 Mo. App. 347,130 S.W. 500
• Parties: FRANCIS et al. v. SUPREME LODGE A. O. U. W.
• Court: Missouri Court of Appeals

130 S.W. 500

150 Mo. App. 347

FRANCIS et al. v. SUPREME LODGE A. O. U. W.

St. Louis Court of Appeals. Missouri.

July 12, 1910.

1. INSURANCE (§ 712)—MUTUAL BENEFIT ASSOCIATIONS — CONTRACTS — WARRANTIES — REPRESENTATIONS.

Contracts of a mutual benefit association are not governed by the statute of Missouri touching warranties and representations in effecting insurance, and the association may invoke the doctrine that a representation as to good health is so material to the risk as to amount to a warranty, which, if untrue when made, will defeat a recovery.

2. WORDS AND PHRASES—"WAIVER."

A "waiver" is the intentional abandonment or relinquishment of a known right; the matter of intention being the essential element.

3. INSURANCE (§ 755)—FORFEITURE—WAIVER.

Though a forfeiture of an insurance contract has taken place, it will be treated as waived and the insurance reinstated, if insurer accepts a premium thereafter falling due and retains it for a sufficient length of time to indicate that it considered the insurance still in force.

4. INSURANCE (§ 755)—MUTUAL BENEFIT INSURANCE—FORFEITURE—WAIVER.

Where a mutual benefit association, after a certificate was forfeitable for nonpayment of an assessment, received the assessment, writing insured that it would hold the money in abeyance until he furnished the health certificate required by the contract to reinstate him, and thereafter and without objection accepted payment of a subsequent assessment, it waived the forfeiture, and that insured later furnished a health certificate was not a waiver of his right to insist that the insurance was in force, though he stated in such certificate that the insurance had been forfeited and requested reinstatement.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by Mamie Pinnell Francis and another against Supreme Lodge Ancient Order of United Workmen. Judgment for plaintiffs, and defendant appeals. Affirmed.

Geo. W. Winstead, Jos. E. Riggs, and Jno. Sullivan, for appellant. Brown & Gallivan, for respondents.

NORTONI, J.

This is a suit on a certificate of life insurance. Plaintiffs recovered and defendant prosecutes the appeal.

Defendant is a fraternal beneficiary association organized under the laws of another state, but qualified and conducting the business of life insurance under the laws of Missouri. It appears the insured, who was the father of the two plaintiffs, became a member of defendant order a number of years ago and received from it a certificate of insurance whereby it agreed and undertook to pay the beneficiaries therein mentioned not exceeding $2,000 upon the prior death of the insured, provided he at all times fully complied with the conditions of the certificate, the constitution, and laws of the order. Insured paid all of the assessments up to the date of his death in July, 1907, but omitted to pay the assessment falling due on or before November 30, 1906, until about two weeks thereafter.

It is provided in the contract of insurance that all assessments must be paid to the proper officers of the order on or before the last day of each month, and in event any such assessment is not paid when due, the insurance shall thereby become forfeited. But another provision of the contract goes to the effect that even after default in the payment of an assessment at the time it is due, the insurance vouchsafed in the certificate may be reinstated upon payment of all assessments then due, if the insured within three months from such date shall execute and furnish to the order a certificate to the effect that he is then in good health. Further, the certificate required under the rules of the order amounts to a representation of warranty pertaining to the good health of the member, and it is contemplated the insurance may be reinstated upon the faith of such warranties.

The insured for some reason defaulted or failed to pay his assessment No. 11, payable on November 30, 1906, and as a result thereof the certificate of insurance became forfeited on the following day, December 1st, of that year. On December 10th, defendant's Supreme Recorder notified the insured by letter that he had omitted to pay the assessment referred to and requested that he should kindly give the matter his attention. Together with this letter, the Supreme Recorder inclosed a proper blank for the execution of the contemplated health certificate. On December 14, 1906, plaintiff forwarded the amount of the assessment then due, $15.44, to defendant's Supreme Recorder, but omitted to execute the health certificate required from those in default.

It appears to be conceded in the case that the insured was then and had been for some time theretofore in an impaired condition of health, suffering with an ailment from which he afterward died. The defendant order received the remittance of $15.44 so made December 14th to cover the preceding November assessment, and on December 20th wrote the insured to that effect, but did not return the November assessment to him. Instead, the defendant's Supreme Recorder wrote the insured requesting him to fill up the reinstatement blank or health certificate and forward it to him. This letter concluded by saying, "As we have not received this reinstatement certificate from yourself, we will hold this money in abeyance until we hear from you." The insured made no answer to this letter whatever and paid no heed to the request for the health certificate. The insured, still having failed to furnish a health certificate, paid the assessment levied against his insurance for January, 1907, and it is conceded the defendant order received such payment in due time on January 31, 1907.

There is nothing in the record to the effect that defendant declined to accept this January assessment, though it was unaccompanied by the health certificate referred to, or that it held it in abeyance awaiting the health certificate. On February 6, 1907, defendant's Supreme Recorder wrote the insured calling his attention to the prior letter of December 20th requesting that he execute an application for reinstatement, together with the health certificate, and said: "We have never received this reinstatement certificate; hence cannot retain you on our books as a good standing member. We believe this is the second time we have called your attention to the nonreceipt of your reinstatement blank. Will you kindly attend to this at once?" On February 8th, defendant received from plaintiff the application for reinstatement requested which contained the health certificate. This application containing a warranty to the effect that insured was in good health at the time, that is, on February 6th, is as follows:

"Supreme Lodge Beneficiary Jurisdiction.

"Application for Reinstatement.

                                 "February 6, 1907
                

"To the Supreme Lodge Ancient Order of United Workmen:

"I, W. W. Pinnell, holding beneficiary certificate No...... of the Ancient Order of the United Workmen, having been suspended from all rights, benefits, and privileges of the order, and...