92 Mo. App. 640 | Mo. Ct. App. | 1902
I. The provisions of the policy of insurance (set out in the foregoing statement of facts) in respect to reinstatement of a member after forfeiture of the certificate of insurance, is a part and parcel of the contract of insurance
Neither tbe articles of tbe association nor tbe by-laws of tbe appellant were introduced in evidence. We are, therefore, left in the dark as to what agency of tbe corporation was committed the duty of passing upon applications for insurance or reinsurance after forfeiture. It is to be presumed that there was some competent authority to pass on these applications. Tbe clerk of the corporation, whose duty as such was merely clerical and not administrative, is not to be presumed to have bad authority to pass upon an application for insurance, nor to have exercised that judgment in respect to tbe condition of an applicant’s health; that could only be exercised by a board of medical examiners or a physician. It does not appear, therefore, that respondent’s application for reinsurance was rejected by the corporation or by anyone who had authority to reject it and, hence, there is no evidence that respondent was not entitled to reinsurance under tbe terms of bis contract as set out in the policy. The trial court also found that defendant acted in bad faith in respect to the application for reinsurance. Under this state of facts respondent’s right to sue and recover tbe full amount of tbe assessments be bad paid on the one thousand dollars of insurance is settled by the case of Dickey v. Cov. Mut. Life Ass’n, 82 Mo. App. 372.
II. The certificate of insurance is dated January 31, 1895. Eespondent was permitted, over the objection of tbe appellant, to introduce receipts in payment of calls from June 1, 1890, to September 1, 1894, inclusive, and tbe recovery in-
The evidence is that there was at first a policy for two-thousand dollars; that on January 31, 1895, respondent surrendered that policy and with it one thousand dollars of insurance and took a new policy for the remaining thousand. The-new policy was not, therefore, a new-insurance or a reinsurance, but was a continuation of the original insurance as to the-one thousand dollars.
We think, therefore, that it is clear that respondent was-entitled to recover all the assessments he had paid for this-insurance of one thousand dollars from the date of the old' certificate, August, 1889. It is clear from the evidence of' respondent, as well as from a comparison of the receipts given-prior to January, 1895, with those given after that date, that the receipts prior to January, 1895, were for assessments on the policy for two thousand dollars. The respondent, therefore, is entitled to recover but one-half of the amount of these-receipts together with what he paid thereafter as assessments on the second policy. The amount of the assessments paid on the two thousand dollars was two hundred and forty-one dollars and forty cents, -one-half of this amount, or one hundred and twenty dollars and seventy cents, represents the excess of the recovery.
It is therefore considered that unless respondent within-ten days from this date enters a remittitur in this court of the sum of one hundred and twenty dollars and seventy cents of his judgment, the judgment will stand reversed and the cause remanded; if the remittitur is entered within ten days the judgment will stand affirmed.