Hyatt v. Loyal Protective Ass'n.

• Decision Date: 30 May 1904
• Parties: HYATT v. LOYAL PROTECTIVE ASS'N.
• Court: Missouri Court of Appeals

81 S.W. 470

106 Mo. App. 610

HYATT v. LOYAL PROTECTIVE ASS'N.

Kansas City Court of Appeals. Missouri.

May 30, 1904.

BENEFICIAL ASSOCIATIONS — DUES — PAYMENT — DEFAULT — ACTION ON CERTIFICATE — PLEADING — COMPLAINT — SUFFICIENCY.

1. The filing of an answer waives an exception to the overruling of a demurrer to the petition.

2. An objection that the petition does not state a cause of action is good even after judgment.

3. Where, in an action on a beneficial certificate, plaintiff failed to allege what amount became due her under the certificate, and failed to pray judgment in any sum, but it could be gathered from the pleading that she sued for $100, such fact was sufficient to support a judgment for that amount.

4. In an action on a beneficial certificate, the certificate offered in evidence was dated April 21st, and the one described in the petition April 8th, but the application of the member was dated April 8th. Held that, as the application was made a part of the certificate, the variance did not warrant the exclusion of the certificate.

5. A beneficial certificate provided that any member failing to pay his per capita tax when due, and his assessments within 30 days of notice thereof, should forfeit all claim on the association, and that the mailing of notice of assessments and per capita tax, addressed to the last-given post-office address of the member, should be considered a legal notification. Held, that the mere failure of a member to pay a per capita tax when due did not work a forfeiture, but there must be a failure to pay the per capita tax and an assessment within 30 days of notice of both.

6. The fact that a member of a beneficial association announced to the collector of the lodge that he would drop his insurance did not affect his status as a member, on the theory that he intentionally stopped payments with a view of severing his relations with the order, but he remained a member until a forfeiture was worked under the laws of the order by lapse of time after notice of the assessment.

Appeal from Circuit Court, Linn County; Jno. P. Butler, Judge.

Action by Grace Hyatt against the Loyal Protective Association. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

A. A. Bailey, for appellant. West & Bresnehen, for respondent.

BROADDUS, J.

This is 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 30 days after notice thereof. An installment of per capita tax and assessment became due December 1, 1902. These were unpaid on December 14th, when the insured died as the result of an injury received the day previous.

The defendant demurred to the petition, which was overruled....