126 Mo. App. 496 | Mo. Ct. App. | 1907
Action upon a policy of life insurance. In obedience to a peremptory instruction, the jury returned a verdict in favor of plaintiff for the amount prayed in the petition and the cause is here on the appeal of defendant, whose principal contention is that under the pleadings and evidence, a verdict should have been directed in its favor.
For aught disclosed by the allegations of the petition, the contract of insurance was one of an old line or mutual company, but defendant, while admitting its execution, alleges in the answer that it is one falling within the operation of the laws applicable to fraternal beneficiary associations. The contract itself recites that it is a “beneficiary certificate issued by the National Council of the Knights and Ladies of Security” to Wm. C. Gruwell, a member of Success Council No. 941, located at Kansas City, State of Missouri,” and provides that “in consideration of the premises and in accordance with and under the provisions of the constitution and laws of the order now in force or that may be hereafter enacted . . . the said National Council hereby agrees to pay to Sallie B. Gruwell, bearing the relation to said member of wife, the sum of $2,000,” etc. Among the stipulations is one providing that “this certificate and contract is and shall be subject to forfeiture for any of the causes of forfeiture which are now prescribed in the laws of the order, or for other cause or causes of forfeiture which may be hereafter prescribed by this order by the amendment of said laws.”
The answer alleges that defendant “was at all times, herein mentioned a fraternal beneficiary society organized and incorporated as a body corporate and politic under and by virtue of the laws of the State of Kansas and doing business in the State of Missouri by permission and license of said State . . . that at the time of the death of the said Wiliam C. Gruwell, he had not performed all of the conditions of said contract
Other sections of laws enacted by defendant in 1902 are then set out in haec verba, but none of them deals directly with the subject of the forfeiture of the
After alleging the amount of dues and assessments, Mr. G-ruwell was required to pay monthly at stated periods in order to prevent a forfeiture of the certificate and his suspension as a member, it is alleged that “he wholly failed to pay or cause to be paid the said regular assessment and dues for the month of August, 1903, and by said failure so to pay within said month of August, 1903, became suspended as a member of said defendant order and all rights under said certificate became and were wholly forfeited thereby,” and that, thereafter, and to the date of his death which occurred on the second day of January, 1905, he failed to pay any of the monthly dues and assessments which would have accrued during that period had he remained a member in good standing. Other facts, are alleged in the answer, but their repetition here is not esential to a proper understanding of the questions which, in our view, are determinative of the rights of the parties. The reply is a general denial.
To receive the benefit of the liberal laws and rules of construction pertaining to death benefit certificates issued by fraternal beneficiary associations, defendant had the burden of pleading and proving not only that it possessed the essential qualifications of such societies as prescribed in section 1408, Revised Statutes 1899, but
We will adopt the statement of facts most favorable to defendant in our consideration of the questions arising under its insistence that the court erred in peremptorily instructing a verdict for plaintiff. The stipu
Though the law always looks with an unfriendly eye on provisions in contracts for the forfeiture of acquired rights, where the parties clearly stipulate for such forfeiture and it does not appear to be obnoxious to any sound reason of public policy, courts will enforce the contract the parties themselves have made. No reason appears for denying to the insurer the protection of a contractual provision compelling the prompt payment of the stipulated consideration on pain of forfeiture. Indeed, it is difficult to perceive hew any insurance company, whether old line, mutual, or fraternal, could do business at all if it permitted its policies to remain in force indefinitely after the assured had ceased to pay agreed premiums. Forfeiture for non-payment is a necessary means to avert disaster to the enterprise and it is well settled that stipulations in the contract which provide that non-payment ipso facto shall work a forfeiture, without notice to the delinquent, should be' enforced. But, in the absence of any stipulation in the contract for forfeiture on the ground of non-payment, the policy will remain in force during the lifetime of the assured, however delinquent he may have become with respect to agreed payments. The idea that the contract of insurance remains in force only during the period for which a premium has been paid, though it has the support of respectable authority, we think is opposed to sound reason, as well as to the weight of authority. As was said by the Supreme Court of the United States in Insurance Co. v. Statham, 93 U. S.
In the present case, the monthly assessments, in ' effect, were nothing more nor less than installments of a consideration which the assured had agreed to pay for the undertaking of defendant to pay his beneficiary an agreed indemnity at his death. Without any agreement that the failure to pay any such installment or installments would work a forfeiture of the right to enforce the undertaking of defendant, the only recourse open to defendant, in the event the assured died delinquent, was to deduct the amount of the unpaid premiums from the amount the certificate required it to pay to the beneficiary.
It results from these principles that the burden is on defendant to plead and prove the forfeiture which it claims obtained prior to the death of the assured. That burden required it to show,, first, that the contract contained an agreement for the forfeiture of the rights of the assured to the beneficiary on account of non
As we have shown, the certificate refers generally to the laws of the order dealing with this subject and . makes them a part of the contract. It was incumbent upon defendant to plead and prove the laws under which it claimed the forfeiture had occurred. It did plead in haeo verba two such' laws of the order, viz., sections 112 and 123. The first of these provides for a forfeiture of the certificate in the event of the nonpayment of dues and assessments for a prescribed period, but the second provides only for a suspension of the member in case he fails to pay his dues to the order, and not for the forfeiture of the death benefit certificate. Defendant adduced proof of the existence of section 123, but failed entirely to prove that of the law pleaded as section 112. It appears that sometime after the certificate was issued, the laws were amended and some change was made in section 112, but that section, as it appears in the laws in force at the time the certificate was issued, as well as in those adopted after that event, differs both in word and substance from the section pleaded in the answer; and the learned trial judge, noting the material variance between them, properly refused to receive the proof offered. The rule is elemental that where the pleader specifies, he is held to the proof of his specifications. He will not be permitted to plead one instrument as a foundation of his cause of action or defense and prove another.
Plaintiff was advised by the answer to prepare to encounter at the trial proof of a certain law on which defendant based its principal defense. To require her to meet, without notice, another law, substantially different from that pleaded, would be violative of the principle which always accords to a party to an action in court a fair opportunity to prepare to meet the charges of his adversary. The evidence adduced by defendant
Point is made that the judgment is excessive in the sum of one hundred dollars which defendant, under a stipulation in the certificate was entitled to deduct for the reserve fund, but it cannot be entertained since no such issue was tendered in the answer.
The judgment is affirmed.