Jackson v. Security Ben. Ass'n
| Decision Date | 29 January 1940 |
| Citation | 139 S.W.2d 1014,235 Mo.App. 368 |
| Parties | MADISON M. JACKSON, APPELLANT, v. THE SECURITY BENEFIT ASSOCIATION, RESPONDENT |
| Court | Kansas Court of Appeals |
Rehearing denied April 29, 1940, Reported at: 235 Mo.App. 368 at 383.
Appeal from the Circuit Court of Bates County.--Hon. Charles A Calvird, Judge.
REVERSED AND REMANDED (with directions as to first count), AFFIRMED (as to second count).
Judgment reversed and remanded with directions as to first count, and affirmed as to second court.
A. W Fulton, Harry L. Ladbury and Edward E. Naber for respondent.
(1) The court did not err in sustaining defendant's motion for a new trial on the first count of plaintiff's second amended petition and setting aside the judgment rendered thereon. Jacoby v. New York Life Ins. Co., 77 S.W.2d 840, 845; Schell v. Metropolitan Life Ins. Co., 3 S.W.2d 269, 271; Adams v. Metropolitan Life Ins. Co., 74 S.W.2d 899, 902, 904; Grafe v. Fidelity Mutual Life Ins. Co., 84 S.W. 400; Orr v. Mutual Life Ins. Co. of New York, 57 F.2d 901, affirmed in the 64 F.2d 561; Jackson v. United Order Commercial Travelers of America, 89 S.W.2d 536, 540; State Life Ins. Co. of Indianapolis, Ind. v. Parks, 89 S.W.2d 289, 290, 292; State Life Ins. Co. of Indianapolis v. Parry, 88 S.W.2d 763; 33 C. J. 16, 17; Anderson v. Metropolitan Life Ins. Co., 96 S.W.2d 631, 634; Sapaw v. Metropolitan Life Ins. Co., 94 S.W.2d 1082, 1085; Martin v. Illinois Bankers Life Assur. Co. et al., 91 S.W. 646, 659. (2) The court did not err in sustaining defendant's motion for new trial as to count two of plaintiff's second amended petition and setting aside the judgment rendered thereon, for the reason there was a total failure of proof. Constable v. Maccabees, 219 Mo.App. 632, 284 S.W. 515, 641, 642; Garretson v. Sovereign Camp, W. O. W., 210 Mo.App. 531, 243 S.W. 257, 260; State ex rel. Nat'l Council, Knights and Ladies of Security v. Allen et al., 306 Mo. 663, 269 S.W. 388, 393; Jenkins et al. v. Talbot et al., 388 Ill. 406, 170 N.E. 735, 741.
D. C. Chastain, Gardner Smith and L. J. Bishop for appellant.
(1) The court erred in sustaining defendant's motion for new trial and motion in arrest of judgment on the first count of plaintiff's second amended petition because: (a) Under the pleadings and evidence, plaintiff proved a prima facie case. Bedwell v. Capital Mutual Association (Mo. App.), 66 S.W.2d 962, 965; Gooden v. Modern Woodmen of America, 194 Mo.App. 666, 189 S.W. 394; Chambers v. Sovereign Camp W. O. W. (Mo. App.), 33 S.W.2d 1029; Hanheide v. Supreme Tribe of Ben Hur (Mo. App.), 223 S.W. 684. In proving a prima facie case, it is unnecessary to show that plaintiff made proof of disability, as the failure, if any, to make proof is an affirmative defense. Shaw v. Mutual Protective Ins. Co. (Mo. App.), 9 S.W.2d 685; Hilburn v. Insurance Co., 140 Mo.App. 355, 124 S.W. 63. However, if testimony as to proof was required, plaintiff's letter of November 12, 1935, constituted due proof of his age and physical disability. Wollenberg v. Equitable Life Assurance Society (Mo. App.), 96 S.W.2d 57, 59. (b) Plaintiff's delay of six years in notifying defendant of his age and physical disability does not bar his recovery, as the certificate sued on does not state when such proof must be furnished. Stahl v. American National Assurance Co. (Mo. App.), 70 S.W.2d 78; Hablutzel v. Home Life Ins. Co. (Mo. App.), 52 S.W.2d 480; Hablutzel v. Home Life Ins. Co., 332 Mo. 920, 59 S.W.2d 639, 641; Minnesota Mutual Life Ins. Co. v. Marshall (C. C. A. 8), 29 F.2d 977; Schollman v. Prudential Ins. Co., 130 Neb. 662, 266 N.W. 75; Home Life Ins. Co. v. Keys, 187 Ark. 796, 62 S.W.2d 950; Home Life Ins. Co. v. Ward, 189 Ark. 793, 75 S.W.2d 379. Plaintiff's failure to give previous notice of disability does not bar his recovering disability benefits accruing after notice given November 12, 1935, as his right to such benefits had matured at the date of disability. Schuerman v. General American Life Ins. Co. (Mo. App.), 106 S.W.2d 920. (c) By denying liability on other grounds and by failing, after demand by plaintiff, to furnish forms on which he could make further proof of age and disability, the defendant waived any right to object to the alleged insufficiency of the proof made by plaintiff. Bedwell v. Capital Mutual Association, 66 S.W.2d 962; Paetz v. London Guarantee & Accident Co., 228 Mo.App. 564, 71 S.W.2d 826, 831; Nagel v. Metropolitan Life Ins. Co. (Mo. App.), 80 S.W.2d 709, 715; Laupheimer v. Northwestern Mutual Life Ins. Co. (Mo. App.), 24 S.W.2d 1062; Davis v. Yorkshire Ins. Co., 221 Mo.App. 798, 288 S.W. 80; Berlau v. Metropolitan Life Ins. Co. (Mo. App.), 24 S.W.2d 686; Warren v. Bankers & Merchants Town Mutual Co., 72 Mo.App. 188; Meyer Bros. v. Ins. Co. of North America, 73 Mo.App. 166. (d) The burden of proving the establishment of the alleged disability fund in 1920 or the alleged increase of assessments for disability benefits was on defendant and there was no evidence showing that such fund was ever established or that the assessments for disability benefits were ever increased. Earney v. Modern Woodmen of America, 79 Mo.App. 385; King v. Insurance Co., 133 Mo.App. 612, 619, 112 S.W. 32; Hannum v. Waddill, 135 Mo. 153, 162, 36 S.W. 616; Young v. Hartford Life Ins. Co., 277 Mo. 694, 700, 211 S.W. 1; Johnson v. Hartford Life Ins. Co., 166 Mo.App. 261, 148 S.W. 631. (2) The court erred in sustaining defendant's motion for new trial and motion in arrest of judgment on the second count of plaintiff's second amended petition, because: (a) Under the pleadings and evidence plaintiff established a prima facie case entitling him to recover. Traughber v. Knights of Maccabees of the World, 227 Mo.App. 792, 57 S.W.2d 783; Dawson v. Knights of Maccabees of the World, 229 Mo.App. 775, 57 S.W.2d 748. The burden is on defendant to prove that it increased the payments due under the certificate and that such increased assessments were reasonable and necessary and not excessive. (3) The court further erred in excluding that portion of defendant's letter of November 23, 1935, and in excluding the next to the last paragraph of plaintiff's letter of November 12, 1935, offered in evidence. Keeton v. National Union, 178 Mo.App. 301, 308, 165 S.W. 1107; John Alt Furniture Co. v. Maryland Casualty Co. (C. C. A. 8), 88 F.2d 36. (4) The court erred in failing to overrule defendant's motion for a new trial and in arrest of judgment on the first count of plaintiff's second amended petition. (5) The court erred in failing to overrule defendant's motion for a new trial and motion in arrest of judgment on the second count of plaintiff's second amended petition.
This is an appeal from the order of the Circuit Court of Bates County, sustaining defendant's motion for new trial after a directed verdict for plaintiff on both counts of his petition.
The plaintiff (appellant here) is the assured under a certificate of insurance, the original of which was issued January 5, 1904, by the defendant (respondent), a fraternal benefit association, originally operating under the name of The National Council of the Knights and Ladies of Security. In 1919, its name was changed to The Security Benefit Association.
The first count of plaintiff's second amended petition, on which the case was tried, alleges the issuance of an original certificate of insurance for $ 1000, January 5, 1904, and that, in substitution for said certificate and upon plaintiff's application therefor, a new certificate was issued by defendant to plaintiff on the 29th day of July, 1916, identical in form with the original certificate except for the change of beneficiary. The petition further alleges that under Section 77 of the by-laws, which, under the terms of said certificate, was made a part thereof, any beneficiary member maintaining in full force his certificate until he should become seventy years of age and physically disabled was entitled, on proof of such disability, to receive ten per cent of his certificate annually during the continuance of the disability, subject to certain deductions therein set out, which are not here material.
It further alleges that the plaintiff was, on July 24, 1935, and at the time of the institution of the action, eighty-four years of age; that, as provided by said Section 77, he held his certificate valid until he reached the age of seventy years, and that thereafter, and since 1929, he has been physically disabled; and that he had performed all of the conditions imposed upon him by the certificate. These allegations are followed by a prayer for disability benefits of $ 100 per year from 1929 to 1935, both inclusive, in the amount of $ 600.
In the second count, plaintiff seeks the recovery of alleged excessive assessments paid by him to defendant on his certificate, and charges that when the certificate was issued in 1904, the assessment rate which his contract required him to pay was $ 2.30 per month; that, thereafter, at various times, the defendant unlawfully increased the assessments he was required to pay; that from 1904 to 1935, the plaintiff paid all the assessments maturing under his certificate, including the assessments so unlawfully increased over a period from 1919 to 1935; that the amount of the assessments he thus paid from 1919 to 1935, in excess of the amount that was actually due from him under the terms of the contract of insurance, was $ 249.15, for which amount he prays judgment. There is no dispute in the record that such sum represents the aggregate amount of such excess payments.
Defendant's answer to the first count of plaintiff's petition, after pleading a general denial, admits the issuance of said certificate and the then existence of Section 77 of the...
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