Taylor v. National Temperance Relief Union

• Decision Date: 28 November 1887
• Citation: 94 Mo. 35,6 S.W. 71
• Parties: TAYLOR and others v. NATIONAL TEMPERANCE RELIEF UNION.
• Court: Missouri Supreme Court

6 S.W. 71

94 Mo. 35

TAYLOR and others v. NATIONAL TEMPERANCE RELIEF UNION.

Supreme Court of Missouri.

November 28, 1887.

1. INSURANCE — MUTUAL BENEFIT INSURANCE — ACTION ON POLICY — PLEADING.

In an action upon a certificate of a mutual benefit association, by which certificate it appeared that the association agreed to make an assessment of all its members, and pay the amount collected for mortuary purposes to the beneficiary, not to exceed $1,000, held, that a petition which does not aver that defendant failed or refused to lay any such assessment, or that, having laid one and collected it, failed and refused to pay the same to plaintiff, is demurrable.

2. SAME.

By the terms of an insurance certificate of a mutual benefit association, the association was not bound to levy an assessment to meet a death loss until 60 days after due proof of the death had been made; and a petition which fails to state that such proof had been made is defective.

Error to circuit court, Ray county; GEORGE W. DUNN, Judge.

Doniphan & Reed, for plaintiffs in error. J. W. Shortell, C. T. Garner & Son, and J. E. Ball, for defendants in error.

NORTON, C. J.

The propriety of the action of the circuit court in overruling a demurrer to plaintiff's petition is the only question we are called upon to decide. The petition contains three counts. So much of the first count as is necessary to a decision of the point raised is as follows:

"Plaintiffs state that defendant is a corporation duly organized and operating under the laws of this state. Plaintiffs state that on the twenty-second day of June, 1884, George R. Taylor departed this life, and his wife, Mary E. Taylor, departed this life about six months previous to the death of her said husband. Plaintiffs state that the said Charles W. Taylor, Georgie May Taylor, and Fonist B. Taylor, are the minor heirs of the said George B. Taylor and Mary E. Taylor, now deceased; that John W. Shotwell, on the twenty-second day of July, 1884, was duly appointed by the probate court within and for Ray county as guardian of the person, and curator of the estate, of the said Charles W. Taylor, Georgie May Taylor, and Fonist B. Taylor, and here files letters of guardian and curatorship. Plaintiffs further state that on the twelfth day of June, 1882, the defendant issued to the said George R. Taylor, now deceased, for the benefit of Mary E. Taylor, his wife, for the sum of one thousand dollars, an indemnity certificate; which said indemnity certificate was duly signed by James Milan, president of said company, and countersigned by F. H. Lewis, secretary, said certificate being in words and figures as follows, to-wit:

"`No. 2,870. INDEMNITY CERTIFICATE OF THE NATIONAL TEMPERANCE RELIEF UNION. $1,000.

"`In consideration of the representation and agreements contained in the petition for membership, certificate of membership, and application for indemnity made by George R. Taylor, of Richmond, county of Ray, state of Missouri, (to be hereinafter called a member,) together with the sum of eight dollars, in hand paid, and the further sum to be paid on assessments as they become due according to the by-laws, rules, and regulations of the National Temperance Relief Union, (which shall be called hereinafter in this certificate "The Union,") the said union issues this indemnity certificate, with the following agreements: Sixty days after due proofs of the death of the said member, George R. Taylor, he having complied with all the conditions of membership, together with the rules, regulations, and by-laws of this union, the said union promises and agrees to make an assessment on all of its members who hold indemnity certificates subject to assessments, and pay the amount collected for mortuary purposes, not exceeding one thousand dollars, less the cost of making the assessment, to Mary E. Taylor, his wife, the beneficiary of said member. Should the said member live until the fifteenth day of September, in the year 1915, he will then have attained his expectancy according to the American experience table of mortality, based on his age at the date of this certificate. The said union promises and agrees that in this event it will make an assessment, as before provided in case of death, and pay the result collected for mortuary purposes, not exceeding one thousand dollars, less the costs of making the assessment, to the said member while living. The assessments shall be paid to the secretary within thirty days after date of notice. Notices of assessments,...