122 Mo. 50 | Mo. | 1894
The defendant is a corporation ■organized under the laws of the state of Massachusetts. It has and holds a certificate from the insurance department of this state, stating that it has complied with all the requirements of our laws and is authorized to ■do business here “on the assessment plan.” This suit is based upon two policies issued by the defendant upon the life of Thomas C. Hanford, each in the sum ■of $5,000, payable to the plaintiff who is the wife of the insured.
The applications for the policies were in writing .and were both signed by the insured on the fifth of December, 1889, at the city of St. Louis in this state; .and the policies bear date the eleventh of the same’ month and year. In each application Thomas Han-ford was asked a number of question, to each of which he made answer in writing. He was asked: “Do you usually have good health!” to which he answered,
The defendant’s answer sets up the matters before stated, according to their legal effect, a,nd avers that the answers made by Hanford to the questions propounded in the applications were untrue.
The evidence produced by the plaintiff shows that the deceased was in a hospital in the city of St. Louis and under the care of the physician of that institution for two weeks in April or May of the year of 1889. He was in the same hospital and under the care of the same physician ' from thirty-first of August to the nineteenth of September of the same year. As before stated the applications were made on the eleventh of the following December. He was again in the hospital and under the care of a physician from the twenty-first of July, 1890, to the date of his death, which was the fifth of September, 1890.
By the terms of each policy Hanford is made a benefit member of the association, and the association thereby agrees to pay to the plaintiff $5,000> in ninety days after proof of the death of Hanford. Each policy is issued in consideration of $20 paid,, and upon other conditions therein set out. The condi
“Sixth. There shall be paid by the member under this contract, in forty days from the date thereof, and annually from said date thereafter, to the treasurer of the association, an assessment of $15 as a part of the expense fund, which fund is at the sole disposal of the officers of the association.
“Seventh. The member shall further pay under this contract, at the office of the association in Boston, Massachusetts, bi-monthly, on the first business day of January, March, May, July, September and November, respectively, of each and every year, the assessment specified in the table of rates printed on the back hereof, for his age at entry, unless the board of directors shall by special notice require a different amount, and in such case the assessment may be based upon the current age of the member. Such assessments, excepting the sum specified in section 6, for expense fund, can be used only for the payment of death and disability claims, protection of the death fund and the emergency fund. Twenty per cent, of all such assessments may be carried to the emergency fund. * * * The member may, if he so elect, make his payments semiannually or annually in advance, in accordance with the table of rates printed on the back of this policy. If the mortality experience of this association shall require any variation from said rates in any call, due notice will be given.”
The plaintiff called the defendant’s adjuster, who gave evidence to the following effect: The defendant has its principal office in Boston, Massachusetts. The principal officers are a president, treasurer, comptroller and adjuster, who receive salaries ranging from $2,000 to $10,000 per annum. The defendant transacts business in most of the states of the union. The business is con
On this state of the case the trial court nonsuited the plaintiff, on the ground that the representations were warranties, and being untrue on the plaintiff’s own showing, she could not recover. The plaintiff contends that there was error in this ruling for two reasons: First. The policies are not assessment plan policies, and are therefore subject to sections 5849 and 5850, Revised Statutes, 1889. Second. If held to be assessment plan policies, they are still subject to those sections.
To an understanding of this question it is thought
At and prior to 1880- many associations organized under the law relating to benevolent associations attempted to do an insurance business without complying with the laws concerning life insurance, but such •companies were suppressed by the courts. State ex rel. v. Benefit Association, 6 Mo. App. 163; State ex rel. v. Benevolent Society, 72 Mo. 146. The opinion in the last, named case was promulgated in 1880. Some concessions were made to charitable and benevolent associations by •acts passed in 1881. In 1887 an act was passed entitled “An act to provide for the incorporation and regulation of associations, societies or companies doing a life •or casualty insurance business on the assessment plan.” That entire act was carried into the revision of 1889 and ■constitutes article 3 of the chapter on insurance. This
We are at a loss to see any good reason why the two sections concerning misrepresentations should be applied to what are denominated old line companies and not to these assessment' plan companies, but the language of the proviso just quoted is strong and explicit. By it corporations -doing business under that article are not subject to any other provisions or requirements of the general insurance laws, except as distinctly herein set forth. The effect of this proviso is to say the two sections concerning misrepresentations shall not apply to assessment plan companies. There is nothing in the history of the laws before mentioned which stands opposed to this conclusion. That history rather shows a determination o'n the part of the legisla
It is.further suggested that these policies are regular old line premium policies and therefore not within the plan marked out by the statute. It is true the fifteen dollars to be paid and used as an expense fund is a fixed and defined sum to be paid annually and is in.
# Our statute concerning these associations seems to Be in most respects the same as the Massachusetts act ■of 1885, but we have been cited to no case from the ■courts of that state, having any bearing upon the questions presented by this record.
The representations made by the deceased are, by the terms of the applications and policies, made warranties, and the plaintiff’s own evidence shows beyond Ml doubt that the representations were untrue. The representations being warranties and untrue, the plaintiff must fail. The judgment is affirmed.