Righter v. Loyal Protective Ass'n.

• Decision Date: 28 April 1908
• Citation: 131 Mo. App. 496,110 S.W. 11
• Parties: RIGHTER v. LOYAL PROTECTIVE ASS'N.
• Court: Missouri Court of Appeals

110 S.W. 11

131 Mo. App. 496

RIGHTER v. LOYAL PROTECTIVE ASS'N.

St. Louis Court of Appeals. Missouri.

April 28, 1908.

INSURANCE — FALSE STATEMENT IN APPLICATION — WAIVER.

Defense of broken warranties by reason of untrue statements in the application for insurance is waived, where for a year after insured has been informed by the secretary that his claim for indemnity for sickness will not be allowed because of such false statements, and long after the bringing of action for such indemnity the company continues to collect dues of insured on calls signed by the same secretary, and does not even offer to return them.

Appeal from Circuit Court, Audrain County; Jas. D. Barnett, Judge.

Action by Charles T. Righter against the Loyal Protective Association. Judgment for plaintiff. Defendant appeals. Affirmed.

Robertson & Robertson, for appellant. A. C. Whitson, for respondent.

GOODE, J.

This action is one on either a policy of insurance or a benefit certificate to recover indemnity for 20 weeks' total disability due to illness. Plaintiff insists defendant is an assessment company doing business under the laws of this state; whereas defendant insists it is a fraternal beneficiary association, and exempt from the general insurance laws of the state. The importance of this question lies in the fact that plaintiff made certain untrue statements in his application for insurance, and, if defendant is an assessment company, the statements are not a defense unless the matter represented contributed to the loss; whereas, if defendant is a beneficiary association, the representation was a warranty and avoided the insurance. It should be stated in fairness to plaintiff he contends the application was made out by the local agent of the defendant company, who knew all the facts, and advised plaintiff the information asked for was unimportant and need not be stated. These matters are irrelevant to the case on appeal as we understand it. The disability occurred May 14, 1905, and continued until October 8th. On or about October 15th proofs of disability were furnished the company, and thereafter, on October 25th, defendant made an examination of the proofs and of plaintiff's physical condition prior to the application, and its adjuster said the claim would be allowed and paid. On December 1, 1905, in a written communication transmitted from the home office of the company in Boston and signed by the secretary of the company, plaintiff was notified his claim would not...