128 Mo. App. 497 | Mo. Ct. App. | 1907
(after stating the facts). — 1. Resolutions under which the assessment were readjusted upon the basis of attained age, were not amendments of the by-laws, and for this reason plaintiff contends the assessments were unlawfully increased. The constitution and by-laws of the association provide that the board of directors shall adjust calls or assessments, and in 1895, the board of directors adopted the policy of assessing each member on the basis of his -attained age and expectancy of life, and authorized the executive committee to carry out the terms of the resolution. Under this resolution, each member was required to pay for his insurance in bimonthly payments the actual cost of carrying the same, according to- the experience of the association, and this is denominated in the testimony of the actuary as an “equitable adjustment of the assessments,” and also in the preamble of the resolution
There is no direct evidence in the record before us
*516 “Assessment Rate Table.
“No assessments will be made while there remains in the death fund a sum sufficient to pay the existing claims in full.
“The basis of the assessment rate for each member, according to age, taken at the nearest birthday, on each $1000 is as follows:
“(Here follows table — the rates increasing with age.) The rate opposite age 59 is $1.25.”
There are, therefore, no facts to warrant us to denounce the transaction of the association with Schmidt as “tricky,” unless it can be said that the policy, constitution and by-laws of the association are calculated to deceive. We do not find them more complicated, more involved or more difficult to understand than are policies, constitutions and by-laAvs of most other associations of the same character. The truth is, most life insurance policies are so written as to be incomprehensible to the ordinary man, and by such are taken upon trust, and if defendant’s form of policy should be condemned as “tricky,” to be consistent, we would have to condemn about every life insurance policy brought before us. There is no evidence to satisfy us that call No. 96 violated the terms of Schmidt’s policy, impaired its value or resulted in a discrimination to his injury, and for these reasons Smith v. Supreme Lodge K. of P., 83 Mo. App. 512, and other cases along the same line, cited by plaintiff, have no application to the facts in this case. We agree with the following paragraph from the opinion of Judge Hough, before whom the case was tried:
“I further find that under the contract there was no limit upon the amount that could be assessed against the plaintiff’s certificate, so long as the assessment was made to meet existing claims by death, and that the provision of said contract that assessments shall be made 'according to the age of each member’ means the*517 age of the member when the assessment is levied. All of the evidence in the ca.se indicates that at the time this assessment was levied the death fund of the defendant association was depleted and an assessment was necessary, in the judgment of the board of directors, and the assessment on plaintiff was made for such a sum as in their judgment was believed to be necessary to meet existing claims by death. Under these circumstances, although the assessment was larger than those theretofore levied against the plaintiff, yet as the amount of assessments to be levied was by the contract left to the discretion of the board of directors, and there is no proof that this discretion was abused, the assessment was a valid assessment and the non-payment of it on or before March 3, 1898, worked a forfeiture of the certificate.”
The judgment is affirmed.