Reed v. Missouri Mut. Ass’n
| Decision Date | 01 May 1928 |
| Docket Number | 20211 |
| Citation | 5 S.W.2d 675 |
| Parties | REED v. MISSOURI MUT. ASS’N. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.
“ Not to be officially published.”
Action by Emma Reed against the Missouri Mutual Association. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Page & Barrett, of Springfield, for appellant.
W. L Cole, of Union, and James Booth and Virginia J. Booth, both of Pacific, for respondent.
Plaintiff brings this action as beneficiary under a certificate of insurance issued by defendant on the life of her husband, George W. Reed, for the sum of $1,000.
The petition alleges the issuance of the certificate on December 17, 1923, and the death of the insured while the certificate was in force. The answer denies generally the allegations of the petition, and by way of affirmative defense alleges that it is a corporation organized and existing under and by virtue of article 3 of chapter 50 of the Revised Statutes of Missouri of 1919, and is conducting a life and accident insurance business on the assessment plan; that the insured became delinquent in the payment of the assessments as provided for in said certificate, and that said certificate then became void and of no force and effect, but that the defendant reinstated said certificate upon application of the insured, who made a written statement to defendant that he was then in sound body, mind, and health, free from disease or injury, and that the defendant, relying upon said statement, reinstated said certificate; that said statement of the insured was false and untrue, and that he was not then in sound body, mind, and health, and free from disease, but that he was diseased and in failing health; that the statement so made by the insured was for the purpose of defrauding, and was a fraud upon, defendant; that defendant’s charter expressly prohibited the issuing of a certificate to any person over the age of 60 years, and that the insured was over that age at the time of the reinstatement of the certificate.
The cause was tried to a jury. At the conclusion of all the evidence, the jury, in obedience to a peremptory instruction given by the court, returned a verdict in favor of plaintiff for the face amount of the policy, with interest, and the court gave judgment accordingly. Defendant appeals.
The defendant insists that the court erred in giving the peremptory instruction, for the reasons (1) that the reinstatement of the certificate of insurance was a new contract, and that the insured, being over 60 years of age at his nearest birthday at the time of such reinstatement, such new contract was void because prohibited by statute; and (2) that there was sufficient evidence to take the case to the jury on the issue of fraud.
The defendant’s by-laws provide that, in case of the death or disability of any member of the association, an assessment shall be made against all the members; that every member, within 30 days after notice of the assessment, must pay the amount assessed against him; that the failure to do so shall ipso facto suspend the member so failing from all rights and benefits held by him in the association, and render his certificate void; that any member failing to pay any assessments, and having been suspended by reason thereof, may reinstate by paying delinquent assessments, provided that such member shall be in good health at the time and shall furnish the association a certificate of such fact.
The insurance certificate sued on, No. A 4501, was issued on December 17, 1923. The insured became delinquent in the payment of assessments in February, 1925, and remained delinquent until October 1, 1925. On the latter date, he paid the delinquent assessments and furnished the defendant with a certificate of health, as follows:
"I, George W. Reed, do hereby certify that I am now of sound body, mind, and health, and free from disease or injury."
Thereupon defendant gave to the insured the following certificate of reinstatement:
It is not disputed that after reinstatement the insured paid all assessments made against him up to the time of his death, which occurred on October 14, 1926. He was 60 years old at his nearest birthday at the time of the issuance of the original certificate, and was past 61 at the time of reinstatement.
Section 6161, art. 3, c. 50, Revised Statutes 1919, provides as follows:
"No corporation doing business under this article shall issue a certificate or policy upon the life of any person who at nearest birthday is more than sixty years of age."
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