Rasch v. Bankers' Life Co.

• Decision Date: 21 June 1921
• Docket Number: No. 17227.,17227.
• Citation: 232 S.W. 183
• Parties: RASCH v. BANKERS LIFE CO. OF DES MOINES.
• Court: Missouri Court of Appeals

232 S.W. 183

RASCH v. BANKERS LIFE CO. OF DES MOINES.

No. 17227.

St. Louis Court of Appeals. Missouri.

June 21, 1921.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by Emma Rasch against the Bankers' Life Company of Des Moines. There was a verdict for defendant, and from an order granting new trial defendant appeals. Affirmed.

S. C. Rogers, of St. Louis, and R. B. Alberson, of Des Moines, Iowa, for appellant.

Alfred H. Kehde and J. J. O'Donohoe, both of St. Louis, for respondent.

ALLEN, P. J.

This is an action on a certificate of insurance issued on October 27, 1911, insuring the life of August F. Rasch in favor of the plaintiff herein, wife of the insured, in the sum of $2,000. The insured died on October 18, 1913, and this suit was instituted on the policy on May 13, 1916. The case was here on a former appeal from a judgment in favor of plaintiff, and was ultimately disposed of here, pursuant to the ruling of the Supreme Court on certiorari (see State ex rel. Bankers' Life Co. v. Reynolds et al., 277 Mo. 14, 208 S. W. 618) by the reversal of the judgment and a remanding of the cause for a new trial for error in the admission of testimony. A new trial resulted in a verdict and judgment for the defendant. Thereafter the trial court sustained plaintiff's motion for a new trial, and from the order granting a new trial the defendant prosecutes this appeal.

The petition is in the usual form. The answer admits the issuance of the certificate of membership sued upon, alleging that the contract of insurance consisted of the application for the insurance, the certificate issued in pursuance thereof, and the articles of incorporation and by-laws of the defendant; admits the death of the insured on October 18, 1913, and that plaintiff gave defendant notice of the death and demanded payment of the insurance; and denies generally the other allegations of the petition. The answer then alleges, among other things, that defendant is an assessment company; that a quarterly assessment—assessment 120—payable on April 1, 1913, with one month's grace for the payment thereof, had been duly levied by defendant, the amount of such assessment payable upon the certificate in suit being $5.60; that the insured also owed defendant on a note in the sum of $40, being the amount payable by him on account of the "guaranty deposit" required to be paid by him, and that $10.80 was due as principal and interest on said note, payable on or before May 1, 1913; that defendant duly notified the insured of such assessment and of the amount so due upon said note by mail, and subsequently notified insured thereof by registered letter, which was received and receipted for by the insured, but that neither the insured nor any one for him ever paid such assessment, or said amount due on said note, or any part thereof. The answer pleads a provision of a by-law, made a part of the certificate, providing that—

"Upon the failure of any member to pay any assessment or expense dues or note within the time and at the place required, his membership shall be thereby forfeited and his right to any share or interest in the funds or property of the association, including his guaranty deposit, shall cease absolutely at the expiration of the time stipulated in which such payments are required to be made and all payments made are thereby forfeited to the association without action on its part."

And it is averred that by reason of the insured's failure to pay said assessment 120, and the amount due on said note, his membership in the defendant association terminated and the said certificate of insurance and all rights thereunder became forfeited. Other averments are made which need not be noticed.

The reply pets in issue the facts alleged in the answer by way of defense, making other allegations which are not here material.

It is unnecessary to set out the evidence at length. The facts involved will be found fully stated in the original opinion of Becker, J., on the former appeal (see Resell v. Bankers' Life Co., 201 S. W. 919). it may be noted, however, that defendant adduced evidence at length, both oral and written, tending to prove the averments of the answer set out above. Plaintiff's evidence, inter alia, went to show that plaintiff, the beneficiary, paid assessment 120, together with the amount due on said note, to one Leonard, cashier of the Farmers' Bank of Trenton, Ill., in April, 1913, receiving no receipt therefor; said bank being admittedly an authorized agent of the defendant to receive payments due from its members.

The trial court sustained plaintiff's motion for a new trial upon the fifth, sixth,...