153 Mo. App. 154 | Mo. Ct. App. | 1910
This is a siiit on a certificate of life insurance. The finding and judgment were for defendant and plaintiff prosecutes the appeal. The case was reviewed by the court on a former appeal. [See Bange v. Supreme Council Legion of Honor, 128 Mo. App. 461, 105 S. W. 1092.]
Defendant is a mutual benefit society operating under the lodge system of government and plaintiff’s husband, Julius A. Bange, became a member of its local lodge, Irving Council No. 2, in the year 1902. Upon becoming associated with the order, it issued to him its certificate of insurance on his life payable at his death to his wife, the present plaintiff, in amount not exceeding $2000. At the time of effecting the insurance and until the 8th day of June, 1904, insured resided in the city of St. Louis where he had formerly been employed as a traveling salesman. He became unemployed, however, in the fall of 1903 and it seems remained so until about August, 1904, when he obtained a position in Chi
When the cause was here on the former appeal, we interpreted this by-law to the effect that it is not self-executing in operating the suspension of the member and a forfeiture at the end of the thirty days therein referred to, as the custom obtains thereunder, with defendant’s consent, to await the next meeting of the council and its failure to pay the contribution for the member. In the présent case, the council paid the contributions for the insured which were called in July, August and September, but on November 9th declined to pay call No. 132 for October. But this of itself does not operate a forfeiture of the insurance unless the insured had notice, actual or constructive, that the call, for the nonpayment of which the forfeiture was declared, had been made, or thereafter received notice of the forfeiture and acquiesced therein. Forfeitures are not favored in the law and are therefore, not to be allowed unless it appears the party whose rights are sought to be thus summarily determined against him has had such reasonable notice as the laws require. [Settle v. Farmers’, etc., Ass’n, 150 Mo. App. 520, 131 S. W. 136.] As to notices touching contributions called by the order, it is provided in its laws that it shall become the duty of the member to pay the same within thirty days after being-notified by the recorder of his council. The notice re
A witness testified that he saw Mr. Bange in St. Louis several times during the winter before he died, but there is no pointed statement in his testimony indi
When the case was here on a former appeal, the court declared the by-law requiring notice to be sent to the “regular address” of the member to intend that the notice shall be mailed to the address where the member will be likely to get it, if such address is known to the recorder. [Bange v. Supreme Council Legion of Honor of Mo., 128’Mo. App. 461, 473, 105 S. W. 1092.]
As it is conceded that notice of assessment No. 132 was not mailed by defendant to Bange’s Chicago address, it is argued the court should have directed a verdict for plaintiff on that score. The argument is, that in accordance with the views expressed on the former appeal the evidence is conclusive that 2637 Park avenue was not Bange’s regular address, for though his wife and child resided there with her mother, his regular address was in Chicago, where he was seeking employment. We have duly weighed this argument and believe, in view of other portions of Lind'sley’s testimony, it is a matter for the jury. The case concedes Lindsley knew Bange’s address in Chicago in August and no doubt for some time thereafter, but the evidence is not conclusive as to his knowledge on the subject in October, when the call for assessment No. 132 was issued. Lindsley, the recorder, testified he did not know Bange’s address at this time, for Mrs. Bange informed him when he called to see her about the contributions that her husband had accepted employment in Chicago, lost
The court instructed the jury that one of the questions which it should determine was whether, during the months of October and November, 1904, the regular address of Julius A. Bange was at 2637 Park avenue in the city of St. Louis or at 2094 Wilcox avenue in Chicago, Illinois; that the by-laws governing defendant required the recorder of Irving Council No. 2 to send notices of contributions, which Bange was required to pay, to his regular address, and that by the words “regular-address,” as used in the by-laws, is intended the place where the member is known by the recorder most likely to receive his mail; that is the place where he is known to expect his mail to be addressed to him and where he usually receives it, although he may not always be present at such place; that in determining whether, at the time mentioned, the regular address of deceased was 2637 Park avenue, St. Louis or 2094 Wilcox avenue, ■Chicago, the jury should take into consideration all of
One of defendant’s by-laws required each member to pay dues and per capita tax at the rate of $1.50 per qxxarter. Another section provides that any member who should become six months in arrears with respect to sxxch dues shall stand suspended. These by-laws may be self-executing as there seems to be no provision for notjce. But whether they are or not it is unnecessary to examine minutely, for that they, are self-executing will be conceded but not decided. It appears the insxxred, Bange, omitted to pay his dues- and was six months in arrears February 1st, 1905. He died February 19, of the same year. It is argued that the insured’s membership and insurance were forfeited because of this fact. Had a forfeiture of the insurance been predicated on this ground in the first instance, it may be the argument would prevail, but, as it is, defendant must be treated as having waived the matter, for it appears no such question was raised in the original answer nor until after the case had been tried and the judgment reversed on the former appeal. After the cause was remanded, defendant filed an amended answer by which, for the first time, it invoked a forfeiture for the non-payment of dues. Plaintiff joined issues with defendant on the first answer which set forth a forfeiture solely on the ground of non-payment of contribution No. 132 after ixotice thereof and a trial was had with respect to that matter. On that issue alone, the court on the former trial directed a verdict for defendant and thus entailed the expexxse and trouble of an