Hyatt v. Legal Protective Association
| Decision Date | 30 May 1904 |
| Citation | 81 S.W. 470,106 Mo.App. 610 |
| Parties | GRACE HYATT, Respondent, v. THE LEGAL PROTECTIVE ASSOCIATION, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Linn Circuit Court.--Hon. Jno. P. Butler, Judge.
Affirmed.
A. A Bailey for appellant.
(1) Plaintiff's petition is fatally defective, in this, that nothing whatever is sued for, asked, or claimed, and appellant's demurrer thereto and objection to the introduction of any evidence in support thereof should have been sustained. R. S. 1899, sec. 776; Rush v. Brown, 101 Mo. 586; R. S. 1899, sec. 679; Ross v. Ross, 81 Mo. 84; Dougherty v. Adkins, 81 Mo. 411. (2) In this case respondent declares on a policy of insurance dated the eighth day of April, 1902, and introduced in evidence and recorded on another and different policy dated the twenty-first day of April, 1902, over the objection of appellant that the same was not the policy sued on. The probata must correspond with the allegata. Rutledge v Railway, 110 Mo. 312; Greene v. Gallagher, 35 Mo. 226. (3) Respondent alleges that she is the beneficiary in the policy sued on; this is denied in the answer. The burden was on respondent to show that she was such beneficiary. There was no evidence offered which tended to prove that she was such beneficiary either in the policy sued on or the one introduced in evidence. (4) The uncontradicted evidence in this case shows that Arthur W. Hyatt was suspended for non-payment of his per capita tax and dues which were payable, according to the terms of the policy introduced in evidence, on December 1, 1902. That notice was given of the call for such payments by appellant as required by said policy. That Mr. Hyatt refused to pay and refused to be reinstated, and announced to appellant's collector that he was going to drop his insurance. And appellant says that Mr. Hyatt had voluntarily forfeited his insurance in defendant association. A member who intentionally stops his payments with the view of severing his connection with the lodge is not a beneficiary member. State ex rel. v. A. O. U W., 78 Mo.App. 546.
West & Bresnehen for respondent.
(1) The petition is sufficient. R. S. 1899, sec. 592. (2) The petition states that the policy is dated April 8, 1902. The certificate proper is in fact dated April 21, 1902, while the application which is a part thereof, is dated April 8, 1902. The petition alleged the execution of the policy. The execution of the policy not having been denied under oath, the execution of the instrument, as a whole, stands admitted. R. S. 1899, sec. 746. (3) The application, which was a part of the policy, shows Mrs. Grace Hyatt, wife of the member, to be the beneficiary. The evidence shows that the plaintiff, Mrs. Grace Hyatt, is the widow of the member, Arthur W. Hyatt, and that he died on December 14, 1902. (4) It will be noted that No. 5, of the conditions on the back of the policy, provides that a failure to pay the per capita tax when due and the failure to pay assessments within thirty days after notice thereof, shall work a forfeiture. To work a forfeiture, there must be not only a failure to pay the per capita tax when due, but a failure to pay assessments within thirty days after notice of the assessment. There is no evidence that any notice of this assessment was ever given. For this reason there could have been no forfeiture. Harris v. Wilson, 86 Mo.App. 406; Lewis v. Benefit Association, 77 Mo.App. 586; Boward v. Bankers Union, 94 Mo.App. 442.
This a suit on an insurance certificate issued by defendant to Arthur W. Hyatt, plaintiff's husband. The defense was a forfeiture for failure of the insured to pay his per capita tax when due and his assessments within thirty days after notice thereof. An installment of per capita tax and assessment became due December 1, 1902. These were unpaid on December 14 when the insured died as the result of an injury received the day previous.
The defendant demurred to the petition which was overruled exception was taken to the ruling of the court and answer filed. The filing of the answer waived the demurrer. When plaintiff offered her evidence defendant again made the objection that the petition did not state a cause of action, an objection which is good at all stages in a cause and even after judgment, but as applied to the petition in this case is merely formal. After stating her cause...
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