Veasman v. Lois Mutual Aid Assn.

*557 BRADLEY, J. This is an action on a fire insurance policy. The cause was filed in Maries county and went on change of venue to Phelps county, where it was tried before the court and a jury. Verdict and judgment went for plaintiff and defendant appealed. The policy sued on was for $1000 and was issued on September 2, 1919, for a period of eleven years from August 29th, the date of the application, and covered loss, by fire or lightning, on grain to the amount of $500, on horses, mules and colts to the amount of $250, and on cattle to the amount of $250. February 11, 1921, plaintiff sustained a loss by fire on horses, cattle and grain covered by the policy. Appraisement was had, and defendant declined to pay, and this suit followed, resulting in a verdict for the loss on horses to the amount of $250, on cattle to the amount of $150, and on grain to the amount of $277.40, a total of $677.40, for which judgment was given. The defense pleaded that the time of plaintiff’s loss his policy was lapsed for failure to pay dues and assessments. The reply is a general denial and a plea of waiver. Defendant makes several assignments, but it is not necessary to consider but three: (1) Failure to give at the close of the case defendant’s instruction in the nature of a demurrer; (2) the giving and refusal of instructions, and (3) the admission of evidence. The first assignment is bottomed on the contention that plaintiff’s policy, at the time of his loss, was lapsed for failure to pay dues and assessments. Plaintiff’s jDOsition with respect to this contention is, first, that the assessments claimed to be delinquent were not legal, and that, therefore, he was not delinquent, and, second, if the disputed, assessments were legal, he had in fact paid together with all dues in due time to an authorized agent of defendant. The controversy between plaintiff and defendant related entirely to the assessments for September and December, 1920, amounting to $1.95 each, and we shall confine our attention to the controversy as presented. • Something is said about some dues for June, *558 1920, but no stress of consequence is put upon this point. Were these assessments legally made? Plaintiff contends that they were -not, and bases his contention on the ground that these assessments were not made in accordance with defendant’s constitution and by-laws. The September assessment was assessment No. 13, and the December assessment was assessment No. 14. N. W. Satterfield, president of defendant, testified that there was no resolution authorizing either assessment 13 or 14, and that he did not know of any record being made of these assessments or either of them, but that the assessments were in fact ordered by the board of directors. The secretary kept an assessment book which contained the names of the members of the association, their address, the number and amount of their policies, amount of dues and assessments, date when levied, and number of assessment. The secretary, when a member paid, wrote the word “paid” after the amount of the assessment. No date as to when a member paid was given. It also appears that at some time, when a member failed to pay, the secretary wrote “not paid” after the member’s name. A page of this assessment book for assessment No. 13 appears in the record and it shows two names after which there is neither “paid” nor “not paid. ’ ’ After plaintiff’s name “not paid” appears, but when entered is not shown. The “not paid” appears also after plaintiff’s name for assessment No. 14. No resolution or record authorized assessments numbers 13 and 14, yet the secretary extended them on the assessment book. Section 20 of defendant’s constitution so far as pertinent is as follows: “Immediately upon the allowance of a claim the board of directors shall impartially levy •upon, all members of the association according to the amount of benefit nominated in his certificate of membership, such amount as is necessary to pay the claim.” Section 5 of defendant’s constitution makes it “the duty of the secretary to keep a record of all the proceedings of the association and its board of directors in a well-bound book.” Such an important matter as the *559 levy of an assessment- should not depend for establishment upon evidence other than the records. The law frowns upon forfeitures, and before defendant could forfeit plaintiff’s policy for failure to pay an assessment or levy, it must show that the assessment was legally made, that is, made according to the strict letter of its constitution and by-laws. Defendant failed to make such showing. [Stubbins v. State Farmers’ Mutual Ins. Co., 229 S. W. (Mo. App.) 407; Logan v. Farmers Mutual Fire Ins. Co., 226 S. W. (Mo. App.) 615, and cases there cited.] Defendant cites Burchard v. Western Travelers Assn., 139 Mo. App. 606, 123 S. W. 973, to support its contention that under the facts plaintiff cannot corn-plain because the cónstitution and by-laws were not observed in making the alleged delinquent assessments. This ease does not support such contention. The general rule there announced is the same as was observed and followed in the cases which we have cited; and the Bur-chard Case was cited in the Logan Case, supra, as an authority for the conclusion there reached. The disposition of the first phase of the peremptory request makes it unnecessary to consider the second. Such request was properly refused. It is not necessary to consider the assignment based on the instructions except as to instruction D requested by defendant and refused. This instruction was to the effect that plaintiff, if he recovered, could recover only three-fourths of the value of the property destroyed. Sec. 21 of defendant’s constitution provides: “This association will make good three-fourths of all losses by fire or lightning.” Plaintiff’s policy provides: “And we do further promise that when the property aforesaid, or any part thereof, shall happen to he injured by fire or lightning such damage shall be made good according to the estimate thereof, or repaired or put in as good condition as the same was before the fire or lightning happened.” Defendant’s constitution and by-laws were not made a part of plaintiff’s policy by-reference or otherwise, and therefore formed no part of the contract. [Goodson et al. v. Nat. Masonic Accident Assn., 91 Mo. *560 App. 339; Elliott v. Safety Fund Life Assn., 76 Mo. App. 562; Lee v. Mo. State Life Ins. Co., 238 S. W. (Mo. App.) 858.] Defendant was incorporated under wliat is now sections 6464 et seq., Revised Statutes 1919. There ¡3 nothing in this statute or any other which prohibits defendant from insuring in excess of three-fourths of the value of the property insured. Instruction D was properly refused. Defendant also complains because plaintiff was permitted to prove the loss of his interest in a cow of which he was not the sole and unconditional owner. The constitution provides that if the holder of the policy is not the sole and unconditional owner of the insured property the policy shall be void. As pointed out above defendant’s constitution was not made a part of the insurance contract, and it cannot complain. The judgment should be affirmed and it is so ordered. Cox, P. J., and Farrington, J., concur.