"The amount due under this contract is to be provided by assessments levied upon each member in proportion to his contribution to the guarantee fund, unless otherwise supplied. "This certificate is issued and accepted as a quarterly renewable term contract between the member and this association, and shall not take effect until received by him while in good health. Payments shall be due quarterly on the 1st day of January, April, July, and October of each year and the first quarterly payment hereunder will be due on April 1, 1912. The member has the option of renewing this contract for each quarter succeeding the dates above named by payment in advance therefor, at the home office or a depository of the association, on said dates. This certificate shall continue in force only during the term for which payment has been made, but a grace of one month is allowed during which each quarterly payment may be made and during which the insurance shall remain in force. "Upon the failure of the member to make any payment due from him to the association by the end of said month of grace, his guarantee deposit and all other payments made shall thereby be forfeited and his membership shall thereupon cease without action by the association. "This certificate shall be incontestable after two years from its date, except for failure of the member to make the payments provided in this contract. "No agent or solicitor has the power to waive any conditions of or modify this contract of membership. "In witness whereof the association has caus ed this certificate to be signed by its president or vice president and attested by its secretary or assistant secretary with the corporate seal of the association on this 27th day of October, 1911. E. E. Clark, President. "[Seal.] G. W. Fowler, Assistant Secretary." The answer also sets out the articles of incorporation and amendments thereto, the by-laws, the application of said August F. Rasch for membership in the association, and the answers made by said applicant to the association's medical examiner. Then follows a statement that on the 23d day of March, 1913, the board of directors of the defendant association duly passed a resolution making an assessment of 14 per cent. levied upon the assessment membership of the company, which assessment, "Call 120," became due and payable on the 1st day of April, 1913, and that a grace of one month was allowed for the payment thereof; that in conformity with said resolution, on the 24th day of March, 1913, due notice of such assessment was mailed to the said August F. Rasch of Trenton, Ill., as follows: "When more than one certificate is included herein an equal proportion of the above total is payable on each. This sum is due April 1, 1913, and payable only to this company at its month's grace is allowed so that payment may home office or to a depository bank. be made on or before May 1, 1913. If not made by that date your membership and insurance will thereby cease without action by the "Bankers' Life Company, company. "By G. S. Nollen, Secretary." "1. If paid at a depository bank, this notice should be stamped 'Paid' by the banker, and will then be your voucher for the amount. Ask him at the same time to stamp and mail the inclosed postal card to notify us of the credit. "2. Banks are not authorized to receive money on this call after May 1, 1913. See other side. "3. Payments to banks not acting as depositories by appointment of this company will not be recognized and if no authorized depository is convenient, members must remit full amount to the home office. "4. Remittances by mail should be by draft or money order, payable to Bankers' Life Company, but the same shall not constitute payment unless actually received at the home office by the 1st day of May, 1913, in compliance with this notice." The answer further sets up that the item 80 cents interest item therein, were each a of $10 appearing in the call, as well as the proper charge in such call for the reason that said Rasch at the time of the issuance of the certificate of membership in question did not pay the $40 guarantee deposit required, in money, but executed in lieu thereof his note under the terms of which note one-fourth thereof, namely, $10 became payable to the April, 1913, call, as did the interest upon the note to said date which amounted to 80 cents; that under and by the terms of section 9 of the by-laws (the entire by-laws being set out in full, as previously stated in the answer, supra, which by-laws are made part of the certificate sued on)— "the failure of any member to pay his assessment or expense dues or note within the time and at the place required, his membership shall be thereby forfeited and his right to any share or interest in the funds or property of the shall cease absolutely at the expiration of the association, including his guarantee deposit, time stipulated in which such payments are required to be made, and all payments made action on its part, and in case any note, check, are thereby forfeited to the association without or draft given in payment or in part payment of money due the association shall not be paid at maturity, the certificate shall lapse in the same manner as it would had the payment not been attempted." "The Bankers' Life Association. "40-356974 Home Office, Des Moines, Iowa, "March 24, 1913. "August F. Rasch, Trenton, Ill.-Sir: This The answer further states that said Rasch is to notify you that a levy has been made upon did not pay the call during the month of the assessment membership of this company for April, 1913, or by the 2d day of May, 1913, 14 per cent. based pro rata on the amount of the guarantee fund of such membership, for the and his membership in the defendant associa of any and every kind against the defendant association thereby and thereupon ceased in accordance with the provisions of the foregoing contract of membership. The answer further alleges that on the 12th day of June, 1913, it sent by registered mail to the said Rasch a second notice regarding Call No. 120, advising him of the nonpayment thereof, and that his certificate had lapsed, and suggesting that he apply for reinstatement, as provided in the by-laws. To this communication, sent by registered mail, a registry receipt was returned to the defendant association by the United States postal authorities, which postal receipt bore the signature of August F. Rasch; that no reply was received to said communication from the said Rasch or any one for him. The respondent's reply was in the nature of a general denial. Plaintiff offered the certificate of membership in evidence, and thereupon rested. Defendant then offered a demurrer which the court overruled, and thereupon the defendant adduced testimony which tended to prove the various allegations set up in its answer. In rebuttal the plaintiff testified that she was a resident of the city of St. Louis, Mo.; that the insured, August F. Rasch, was her husband, and that at the time the certificate or policy of insurance in question was issued she and her husband were living at Trenton, in the state of Illinois, and that at the time of his death, on October 18, 1913, plaintiff and the insured were living in East St. Louis, in the state of Illinois, having moved there from Trenton on March 18, 1913; that during the period of time after the issuance of the certificate or policy of insurance, the deceased had a bank account at the Farmers' Bank of Trenton, Ill. Witness further testified that she knew payments had to be made on the certificate or policy of insurance in question, four times a year, namely, in January, April, July, and October; that in April, 1913, she went to Trenton, Ill., leaving on a Friday evening; that the insured promised to send her money by her sons for the purpose of paying the quarterly payment which was due under the April, 1913, assessment; that on the following Sunday the insured sent the money by the sons, as agreed upon, and that the following day she took the money to the Farmers' Bank of Trenton, Ill., which bank was one of the depositories duly authorized by the defendant company to receive payments of assessments; that she had theretofore made payments of similar kind at said bank; that on this occasion, as on prior occasions, she paid the money to one Leonhard, an officer of said Farmers' Bank; that she did not have the notice of assessment with her at the time she made the payment in April, 1913, and that Leonhard did not give her any receipt. She further testified that about a week after her husband's death, which occurred on the 18th day of October, 1913, she spoke to Leonhard at the bank in Trenton, and he stated that, “All but the October premium was paid, and for that reason I could not get the insurance." Plaintiff further testified that she never received any mail from the defendant association addressed to the insured in the months of April, May, June, or July, 1913. On cross-examination she admitted that her husband was in business, and had a shop some 16 blocks from their residence; that she did not know what mail, if any, was received by the insured at his place of business; she did not remember the amount that she had paid Leonhard in April, 1913, and she denied that the signature attached to the return receipt for the registered letter, addressed to her husband, was his signature. Further, she stated that she had consulted a lawyer in East St. Louis, Ill., concerning her rights under the certificate in question, some time in October, 1913, but that she took no steps, nor did she furnish any proofs of death at that time, nor did she take any action whatever until she filed the instant suit, which was begun on the 3d day of May, 1916. Hamilton Rasch and Frederick Rasch testified for the plaintiff that they were the sons of the deceased, and had gone together from East St. Louis to Trenton in the month of April, 1913, at which time Hamilton carried an envelope containing money which had been given him by his father for their mother who was visiting in Trenton; that the money was delivered to the plaintiff by said Hamilton with the statement that it was to be used by her for paying the April, 1913, as sessment. Mrs. Kate Bosler, a witness for the plaintiff, testified she went with the plaintiff in October, 1913, when plaintiff called at the Farmers' Bank at Trenton, Ill., and that she heard part of plaintiff's conversation with Leonhard; that she heard Leonhard say, "Well, I guess you can't get that, Mrs. Rasch; you haven't got your October premium paid, and you can't get that," or "you can't get it." She testified that October was the only month he mentioned. The defendant in rebuttal introduced testimony to the effect that depository banks to which payments of the assessments could be paid by the members of the association had no notice of the amounts that were due under the assessments by the several policy holders, and that the depository banks had to rely solely upon the notice sent to each member for information as to the amount due from each; that the bank was authorized to stamp or mark "Paid” such notices as were presented; that the assessments of the several members or policy holders varied according to their ages. It appears that at this point in the trial the court refused to permit the defendant to introduce in evidence the written report of the Farmers' Bank at Trenton, Ill., to the defendant association, containing the names and amounts paid by each of such members of the defendant company at the said bank during the month of April, 1913, which report was offered to show no payment of the April, 1913, assessment had been made for the said Rasch, the insured, as had been testified to by the plaintiff. The court thereupon adjourned for several hours in order to permit counsel for defendant to endeavor to produce Leonhard of the Farmers' Bank of Trenton, Ill., in court as a witness. Upon the reconvening of the court counsel for defendant stated that it was unable to produce Leonhard as a witness at that time. Defendant then requested leave to amend its answer, the amendment embracing the added defense of limitation. The request to amend was refused by the court and due and timely exceptions taken thereto by the defendant. The court thereupon submitted the case to the jury upon the following instruction: "The court instructs the jury that if you be lieve and find from the evidence in this case that August F. Rasch, deceased, paid to the defendant the assessment due on the certificate in evidence in the month of April, 1913, then your verdict in this case will be for the plaintiff. On the other hand, if you believe and find that said Rasch did not pay the assessment on said certificate due in April of the year 1913, your verdict will be for the defendant." The above instruction was given by the court of its motion. The following instruction was given at the request of the defendant: "The court instructs the jury that if you find for the plaintiff you will allow her the sum of $2,000, with interest thereon at the rate of 5 per cent. per annum from the 25th day of October, 1913, to this date." While section 2 of the amendments to the articles of incorporation contains the following: "The business of this association shall be conducted upon the mutual assessment plan, in which the payment of all assessments shall be secured by a guarantee fund, contributed by each member pro rata according to age at entry; this guarantee fund, together with the insurance provided in the certificate of membership and by-laws of the association, to be forfeited upon failure of a member to pay his assessment within the time prescribed by the by-laws of the association: Provided, however, that relief from such forfeiture, and provision for reinstatement of lapsed members, may be made by the board of directors." Article 2, section 1, of the amendments to the articles of incorporation, among other things, provides that: funds in advance for the payment of any claims "The board may in like manner also provide which may be anticipated during the three months next ensuing basing the estimate on the American Experience Table of Mortality." Article 5 of the by-laws, pertaining to assessments, provides: "The funds needed to pay death losses shall be provided for by quarterly assessments levied upon each member in proportion to his contribution to the guarantee fund, unless otherwise supplied. Such assessments shall be made resolution shall specify the object to which the by resolution of the board of directors, which money to be collected is to be devoted, and such assessment shall be due and payable on the 1st day of January, April, July, and October of lowed during which each quarterly payment each year, but a grace of one month shall be almay be made. Each assessment shall be limit The only other instructions were one with reference to the number of the jury requisite to return a verdict, and an instruction to the effect that the jury were the sole judges of the credibility of the witnesses and of the weight to be given to their testimony. Four instructions which were offered by the plain-ed to the amount required to pay the death tiff, as well as nine instructions offered by the defendant, were refused by the court. losses reported and unpaid at the time the assessment is made, and in addition thereto a sum which shall not exceed the death losses estimated to occur during the three months next ensuing, basing such estimate upon the American Experience Table of Mortality." [1] These provisions which are a part of the contract we hold make it an insurance company on the assessment plan, as defined by our statutes. See Smoot v. Bankers' Life Ins. Co., 138 Mo. App. 438, 120 S. W. 719; Hill v. Business Men's Accident Ass'n, 189 S. W. 587. I. Is the defendant in this case, for the purposes of construing the particular contract in question, an assessment or old-line insurance company? Section 6950, Revised Statutes of Missouri 1909, provides that every contract whereby a benefit is to accrue to a person or persons named therein, upon the death or physical disability of a person also named therein, the payment of which said benefit is in any manner or degree dependent upon the collection of an assessment upon persons holding similar contracts, shall be deemed a contract of insurance upon the assessment plan. Now the policy or certificate of membership sued on provides: "That in consideration of the articles of incorporation and by-laws of this association and of his application No. 292213, copies of all of which are indorsed hereon and expressly and that the plaintiff was the designated made a part of this contract, *" shall beneficiary in said policy, and further admit ** [2, 3] II. Defendant assigns as error the overruling of its request for an instruction in the nature of a demurrer offered at the close of the plaintiff's testimony as well as at the close of the entire case. The defendant's answer, however, having admitted the issuance of the certificate or policy of insurance upon the life of August F. Rasch, company in the state of Illinois, and the insured at the time of the application for the policy, as well as at the time of the delivery thereof, and continuously up to the time of his death, was a resident of the state of Illinois. We concede, under this state of facts, that the contract is an Illinois contract and under proper pleadings and proof thereof it would be governed by the laws of the state of Illinois. Davis v. McColl, 179 Mo. App. 198, 166 S. W. 1113; Wade v. Boone, 184 Mo. App. 88, 168 S. W. 360. An examination of plaintiff's answer discloses that it sets out the fact that the contract is an Illinois contract, and also embodies section 12 of the by-laws, supra, yet the answer fails to plead the defense of limitation as to the bringing of the suit. mand had been made upon it for payment, and licensed to do business as an assessment and admitting that payment had been refused, it was necessary for the plaintiff merely to introduce the policy of insurance in evidence, which it did in the instant case, and she thereby made a prima facie case. The burden of showing whether any installments were unpaid at the death of the insured under this state of facts rested upon the defendant. Bange v. Supreme Council Legion of Honor, 179 Mo. App. 21, 161 S. W. 652; Gooden v. Modern Woodmen of America, 194 Mo. App. 666, 189 S. W. 394; Harris v. Security Life Ins. Co., 248 Mo. 304, loc. cit. 318, 154 S. W. 68. And it has often been held that even though the evidence in support of such defense is uncontradicted, still the issue must be submitted to the jury in order that they may determine the credibility of that evidence, and that the court in such case [6, 7] It will not be controverted but that cannot direct a verdict. Winn v. Modern in an action on a life insurance policy the Woodmen of America, 157 Mo. App. 1, 137 S. defense of limitation is an affirmative one, W. 292; Troll v. Protected Home Circle, 161 and must be pleaded, or it will be held to Mo. App. 719, 141 S. W. 916; Printz v. Mill-have been waived. Shearlock v. Mutual Life er, 233 Mo. 47, 135 S. W. 19; Milliken v. Thyson Comm. Co., 202 Mo. 637, loc. cit. 654, 100 S. W. 604; Hunter v. Wethington, 205 Mo. 284, loc. cit. 293, 103 S. W. 543, 12 Ann. Cas. 529; Mowry v. Norman, 204 Mo. 173, loc. cit. 191, 103 S. W. 15; Wolff v. Campbell, 110 Mo. 114, 19 S. W. 622; Keily v. Knights of Father Matthew, 179 Mo. App. 608, 162 S. W. 682. [4] We are clearly of the opinion that the demurrer offered at the close of plaintiff's case, as well as the demurrer at the close of the entire case, were properly overruled. The testimony to the effect that plaintiff had made the payment of the April, 1913, assessment, and her testimony that Leonhard of the Farmers' Bank, to whom assessments on this certificate had usually been paid, had stated to her after the death of the insured that all assessments on the certificate had been paid excepting that of October, 1913, when taken together with her denial of the alleged signature of the insured to the return receipt for the registered letter which the testimony for the defendant shows had been sent by it to the insured after his alleged failure to pay the April, 1913, assessment, we hold made it a case for the jury. Ins. Co., 193 Mo. App. 439, 182 S. W. 89; Keys v. Knights and Ladies of Security, 174 Mo. App. 671, 161 S. W. 345, and cases therein cited. But it is argued that there was no showing on the face of the contract in respondent's petition to indicate where the contract was finally consummated, that the appellant lost sight of the assured subsemore of the assured or respondent since no quent to April, 1913, and "knew nothing demand was made after the death of the assured until suit was brought in May, 1916, and respondent suing in Missouri, appellant did not know where the contract was finally con summated. It might be different had timely and formal notice been presented to the appellant company, or had the assured or respondent responded to appellant's requests for information concerning them and their address. These are facts, and were first disclosed to appellant after the testimony of the respondent in rebuttal, when appellant requested leave to amend its answer under section 1848, Revised Statutes of Missouri 1909, and the court should have permitted such amendment to be made." There is no merit in this argument in view of the fact that the appellant's records necessarily disclosed the fact that the contract was applied for and delivered to the insured while he was a resident of the state of Illinois, and that he continued to be a resident of Illinois up to the time when, according to defendant's testimony, the insured's policy lapsed * No action at law or equity shall be by failure to pay the assessment in April, brought upon a certificate of membership on ac- 1913. But aside from all this defendant's count of the death of a member unless proof of answer sets up the fact that the contract is his death shall have been presented to the association and suit brought within one year an Illinois contract. Under the facts and after the date upon which the death of the circumstances shown by this record, we hold member occurred. * (Italics ours.) that the learned trial judge ought not be held The uncontroverted testimony shows that in error for refusing to permit the defendthe insurance company was a corporation or-ant to amend its answer. We rule this point ganized under the laws of the state of Iowa against appellant. [5] III. It is urged that the trial court erred in refusing to permit appellant, defendant below, to amend its answer setting out the limitation proviso as contained in the policy. Section 12 of the by-laws, which were appended to and made part of the contract of insurance in question, provides that: * but the defense was that no part of such amount due April, 1913, had been paid. Under these circumstances we cannot see how the jury could possibly have been misled by the use of the word "assessment" in the instruction. [8] IV. We find no error in the action of | 120,” and, further, it was not contended that the court in permitting plaintiff in rebuttal a part of the amount due had not been paid, to testify that Leonhard, cashier for the Farmers' Bank at Trenton, Ill., had stated to plaintiff a few days after the death of the insured that all assessments on the certificate in question had been paid with the exception of the October, 1913, assessment. This testimony was clearly competent in view of the fact that it was admitted by defendant that the said Farmers' Bank was a regular depository bank duly authorized to receive payments of assessments from the several members of the defendant association who held certificates of insurance therein, and, further, the witness had already testified to the fact that prior assessments on the certificate in question had been paid to said Leonhard at that bank. [9-11] V. An examination of the instructions given in the case shows that the learned trial court took the view, and we hold properly, that if, in point of fact, the insured paid or caused to be paid the assessment for April, 1913, then though the defendant insurance association declared his policy or certificate forfeited on the alleged ground of the nonpayment of such April, 1913, assessment, such attempted forfeiture was void and of no effect; and that, under the rulings of our appellate courts, the giving of such notice of attempted forfeiture, coupled with the fact that (according to its own testimony) it did not thereafter notify the insured of any subsequent assessments, relieved the assured of the obligation to pay or to tender payment of subsequent assessments. Wayland v. Western Life Indemnity Co., 166 Mo. App. 221, 148 S. W. 626; Johnson v. Hartford Life Ins. Co., 166 Mo. App. 261, 148 S. W. 631; Purdy v. Bankers' Life Ass'n, 101 Mo. App. 91, 74 S. W. 486. And the facts in this case fail to prove acquiescence even when viewed in the light of the rule that whenever there is a void expulsion or suspension the expelled or suspended member is under a duty to affirm or disaffirm the act of expulsion or suspension within a reasonable time. Furthermore, abandonment is an affirmative defense, and no such defense is set up in the answer. Defendant thereby waived same by not pleading it. Keeton v. National Union, 182 S. W. 798. [12] We have examined the instructions given in the case with reference to the errors assigned therein by appellant. They properly limit the issue to the payment or nonpayment of the April, 1913, assessment. All [13] However, the instruction which contains a direction that if the jury find for the plaintiff, "you will allow her the sum of $2,000, with interest thereon at the rate of 5 per cent. per annum from the 25th day of October, 1913, to this date," is erroneous as to that portion which relates to interest. It is true the record shows that the defendant admitted a demand for payment had been made, and admitted its refusal to pay, but nowhere does it appear when such demand was made. An alleged demand that was attempted to be shown to have been made upon Leonhard by the plaintiff on or about October 24, 1913, was not permitted at the trial, the court ruling that the plaintiff must first show that Leonhard "had authority to make such admission." Plaintiff did not adduce any testimony such as the court ruled would be necessary to show before a demand for payment on the defendant association through Leonhard would be admissible. In fact, the record discloses that after the court made its said ruling counsel for plaintiff made no further effort in that direction, as is definitely ascertained from the following excerpt from the record: "Court: Your question was as to whether or the claims under the policy. not he admitted that the company would pay "Mr. O'Donohoe: We do not care about that." The instruction under this state of the record should have limited the item of interest to begin from the date of the institution of the suit, namely, May 3, 1916. Under this instruction the jury brought in a verdict for plaintiff for $2,000, the face of the policy or certificate in question, together with $302.50 for interest. The item of interest we hold is $252.50 in excess of what should have been allowed. We have carefully examined the several other assignments of error made by appellant, but find them without merit. If, therefore, the respondent will remit $252 within 30 days, the judgment will be affirmed; otherwise reversed and remanded. REYNOLDS, P. J., and ALLEN, J., concur. CO. (No. 2016.) (Springfield Court of Appeals. March 11, 1918.) Missouri. As for the use of the word "assessment" in- BATHE v. MOREHOUSE STAVE & MFG. stead of setting out the several items which went to make up the total amount thereof, we rule the point is without merit. through the trial of the case the word "assessment" was used by defendant as well as the plaintiff, and the court to designate the several items which became due under "Call MASTER AND SERVANT 234(1)-INJURIES TO |