by-law, made a part of the certificate, providing that

It will be noticed that this instruction requires a finding that the assured received notice of the assessment "during the month of "Upon the failure of any member to pay any assessment or expense dues or note within April, 1913." The assessment in question the time and at the place required, his member- was payable April 1, 1913, but, one month's ship shall be thereby forfeited and his right grace being allowed, it could be made any to any share or interest in the funds or prop- time during that month. The by-laws, howerty of the association, including his guaranty ever, provided that notice of the assessment deposit, shall cease absolutely at the expira- should be mailed to each member in good tion of the time stipulated in which such pay- standing during the month preceding the calments are required to be made and all pay-endar month in which the payment is due, ments made are thereby forfeited to the as- In this respect the instruction is improperly sociation without action on its part." drawn, but whether under the circumstance it was prejudicial error to give it in that

And it is averred that by reason of the in-form we need not say. sured's failure to pay said assessment 120, [1] The thirteenth assignment in the moand the amount due on said note, his mem- tion for a new trial is that the court erred bership in the defendant association termi-in refusing to give instruction M, requested nated and the said certificate of insurance by plaintiff, which is as follows: and all rights thereunder became forfeited. Other averments are made which need not

be noticed.

The reply puts in issue the facts alleged in the answer by way of defense, making other allegations which are not here material.

It is unnecessary to set out the evidence at length. The facts involved will be found fully stated in the original opinion of Becker, J., on the former appeal (see Rasch v. Bankers' Life Co., 201 S. W. 919). It may be noted, however, that defendant adduced evidence at length, both oral and written, tending to prove the averments of the answer set out above. Plaintiff's evidence, inter alia, went to show that plaintiff, the beneficiary, paid assessment 120, together with the amount due on said note, to one Leonard, cashier of the Farmers' Bank of Trenton, Ill., in April, 1913, receiving no receipt therefor; said bank being admittedly an authorized agent of the defendant to receive payments due from its members.

the terms of the certificate or policy sued on "The court instructs the jury that under and offered in evidence a grace of one month is allowed, during which each quarterly payment may be made, and during which the insurance shall remain in force.

"If you find and believe from the evidence that the Farmers' Bank of Trenton was, in the months of April and July, 1913, the dedefendant to receive and collect quarterly payfendant's representative, with authority from ments from August F. Rasch, the insured under the certificate or policy in evidence, and from other certificate or policy holders of defendant; and if you further find and believe from the evidence that the quarterly payment due on the 1st day of April, 1913, was paid to the said the Farmers' Bank of Trenton, then your verdict should be for the plaintiff, even though you may find and believe from the evidence that the said the Farmers' Bank of Trenton gave no receipts. for said quarterly payments, and failed to remit or turn over gaid quarterly payments to the defendant."

We think that, under the evidence in the case, plaintiff was entitled to an instruction of this character. It is said by appellant, limitation as to the time of payment of the however, that in this instruction there is no

The trial court sustained plaintiff's motion for a new trial upon the fifth, sixth, seventh, for a new trial upon the fifth, sixth, seventh, tenth, and thirteenth grounds thereof. The fifth, sixth, and seventh assignments in the motion pertain to the admission and exclusion of evidence. These we need not here assessment due in April, 1913; and also that notice, except to say that we have not been the latter part of the instruction is erroneous referred to any particular ruling or rulings referring to "quarterly payments" in the on the admission or exclusion of evidence plural. For the reasons mentioned, the instruction was, perhaps, properly refused in claimed to be erroneous. The tenth assignment in the motion is that the court erred in the first instance. However, among other ingiving instructions requested by the defend-structions asked by plaintiff, and which the ant. But one instruction was given at de- court refused to give, was the following: fendant's request, which instruction is as follows:

"The court instructs you that if you find and believe that the assured, August F. Rasch, received notice of assessment No. 120 during the month of April, 1913, and intentionally failed or neglected to pay the said assessment, if you find such to be the fact, and thereby knowingly permitted such certificate of insurance to lapse on the books of the company, then if you find such to be the facts your verdict will be for the defendant."

"The court instructs the jury that if you find and believe from the evidence that the Farmers' Bank of Trenton was, in the months of April and July, 1913, the defendant's representative, with authority from defendant to receive and collect quarterly payments from August F. Rasch, the insured under the certificate or policy in evidence, and from other certificate or policy holders of defendant; and if you further find and believe from the evidence that the quarterly payment due on the 1st day of April, 1913, was paid in April, 1913, to said the Farmers' Bank of Trenton, then the

(232 S.W.)

alleged termination of the membership of said | 3. Pleading 174-Reply alleging no false August F. Rasch and the alleged forfeiture of his rights under said membership are void, even though you may find and believe from the evidence that the said the Farmers' Bank of Trenton gave no receipts for said quarterly payment, and failed to remit or turn over the same to defendant."

TRIMBLE, P. J. This is an action on a policy of insurance issued on the life of Arthur J. Reid, who, on February 4, 1913, at Kansas City, Mo., applied for the policy which was issued on March 4, 1913, and delivered in Missouri to insured on April 11, 1913. The policy agreed to pay the amount specified in the constitution of defendant, (which was $1,600), which amount was to be paid to insured himself "in the event of his total and permanent disability," or at his death said amount, according to the face of the policy, was to be "paid to Mary J. Reid, his wife, if living, if not to the executor or administrator of said member's estate, in

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

trust, however, for and to be forthwith paid | swers therein, and that said disease resulted over to his heirs at law." Mary J. Reid, the in his death. There was no attempted pleadbeneficiary thus named, died in 1916, and shortly thereafter the insured had his mother substituted as primary beneficiary in the policy in the place of the wife.

The constitution and by-laws of the defendant provided that the insurance contracts issued by it should be "in all respects deemed to be made under, and to be interpreted and construed in accordance with, the laws of the state in which the Grand Lodge has its headquarters." (They were in Cleve-ability benefits, waived the right to refuse land, Ohio.)

(232 S.W.)

policy would be payable to the executor or [ diseases therein named, among them pleuradministrator of insured, in trust, for and to isy or any disease of the throat, lungs, or be forthwith paid over to his heirs at law, heart. On February 10, 1918, insured made and the defendant, in order to shut out the application to defendant for the payment of possibility of some other action being brought the policy to him on account of his "total and on the policy by insured's administrator in permanent disability." The physician's cercase plaintiff lost in this case, desired to tificate, dated February 10, 1918, and attachobtain the affirmative relief of having the ed to said application, was made by Dr. Barr, policy canceled. But no claim is made that and he certified that insured was completely plaintiff is not the proper person to sue on disabled and had been since January 1, 1917; the policy, or that she could not be substitut- that he "has chronic tuberculosis," the upper ed in the place of insured's wife as the pri- lobe of right lung being completely involved; mary beneficiary in the policy; and if she is that he "had an attack of pleurisy in 1910. the proper beneficiary, then, since she was Shortly afterward his sputum was examined living at the death of insured, her rights and showed T. B." In the blanks furnished under the policy became vested, and even if insured by defendant for proofs in support of she should subsequently die, no cause of ac- his disability claim, insured was requested tion would seem to revert and arise in in- to give "date of injury or first sickness leadsured's administrator under the policy. ing to present condition," and the answer thereto was, "Nov. 1910." The proof or blank in which this answer appears is dated March 13, 1918. On March 28, 1918, defendant wrote insured, saying:

[1, 2] However, we are relieved from the necessity of deciding whether the case should have been tried at law or in equity for two reasons: (1) Because defendant insists it was properly so tried, and plaintiff is the only one objecting thereto, but as the judgment was in her favor, she very naturally did not appeal and, of course, cannot be heard in complaint. (2) Because, in the case of Carter v. Metropolitan Life Ins. Co., 275 Mo. 84, 94, 204 S. W. 399, L. R. A. 1918F, 325, the Supreme Court has held that the prayer for cancellation of the policy in defendant's answer changed the action at law into one in equity. We will therefore consider the case on the same theory that it was tried, namely, that it is one in equity; and agree with appellant in its contention that in an equity case the appellate court is not bound or concluded by the findings or decision of the trial court, but the same on appeal may be considered de novo. Scott v. Page, 224 S. W. 1001, 1003; Schulz v. Bowers, 223 S. W. 725, 726. There is, however, a well-established qualification to that rule mentioned in both of the above-cited cases, and it is somewhat more fully stated in the latter, to wit, that "Whilst we look upon the finding of the lower court as persuasive, we do not allow it to be binding, unless our minds run with the chancellor below on the facts, or unless the facts are conflicting and close, and we yield to his judgment because of his better position to judge of the credibility of the respective witnesses."

The defense of alleged untruthful answers on the part of insured, and plaintiff's claim that defendant has waived, or is estopped to make, such a defense, arise out of the following facts:

In insured's application made February 4, 1913, he made the answers to the questions hereinbefore set out in which he said that he was then in good health and had not consulted a physician in the last five years; that the condition of his health was then excellent; and that he had never been afflicted with the

"Proofs of your disability claim have been received. However, before taking action on same, I wish you would kindly advise me of the name and address of the first physician you consulted on account of your present tubercular condition which you say began in November, 1910." (Italics ours.)

On March 30, 1918, insured wrote defendant, saying:

"Dr. Barr of Clinton, Mo., was the first physician I consulted regarding my case. He was treating me when I had the pleurisy and sent my sputum to the state university for examination at that time which showed tubercular

germs.'

This letter was received by defendant not later than April 2, 1918.

While insured's application for payment of the policy to him was still pending and before it was acted upon, insured died on July 12, 1918, as hereinbefore stated. Thereupon the beneficiary in the policy, the plaintiff herein, notified the defendant of insured's death, and applied for the payment of the policy to her.

On August 15, 1918, defendant wrote plaintiff, acknowledging receipt of proofs of death, but stating that as they showed no members of the brotherhood identified the remains, it was necessary for plaintiff to present a photograph of deceased to the undertaker and have him make an affidavit that it was the likeness of Arthur J. Reid whom he buried, giving the date, and for plaintiff to forward said affidavit and picture to the defendant's general office. The letter then asked plaintiff to kindly advise the company the exact date on which insured was taken ill with the disease that later resulted in his death and the first physician whom he consulted with regard to his condition. The requests thus made of plaintiff were complied

with. In plaintiff's declarations she stated N. E. 722; Daffron v. Modern Woodmen, 190 T that deceased had been sick about a year pri- Mo. App. 303, 176 S. W. 498; Smith v. Sovor to his death. ereign Camp Woodmen of the World, 179 Mo. 119, 77 S. W. 862; Supreme Tribe of Ben Hur v. Hall, 24 Ind. App. 316, 56 N. E. 780, 79 Am. St. Rep. 262.

Thereafter on December 31, 1918, defendant wrote plaintiff rejecting the claim under the policy on the life of her late son, Arthur J. Reid, "on account of him having made misstatements in his application * relative to his physical condition. When Brother Reid made said application under date of February 4, 1913, he said that he was then in good health, and had not consulted a physician for five years prior thereto. When he filed his disability claim in 1918-Marchon his declaration he stated that his condition (on which the claim was filed) began in November, 1910."

The petition alleged that defendant was an insurance corporation duly organized and existing according to law, but not organized under the laws of the state of Missouri, and was engaged in the insurance business in this state, but was not licensed so to do by the superintendent of insurance.

[4] Defendant, in its answer duly sworn to, denied that it was a corporation and alleged that it was a voluntary unincorporated association organized under and by virtue of The grounds of estoppel, preventing defend- the laws of Ohio, and that it is, so far as its ant from relying upon its defense of forfeit- insurance business is concerned, a fraternal ure on the ground of alleged misstatements, benefit society, and that its membership is were the writing of the letter to insured, limited to the one hazardous occupation of dated March 28, 1918, whereby, after notice railway trainmen, and that benefit certif(had as early as March 13, 1918) of such icates are issued only to members. To prove alleged misstatements, the defendant requir-her allegation that defendant is a corporaed insured to furnish other proofs, and that tion, which fact defendant denied in its annotwithstanding such notice defendant, nev-swer under oath, plaintiff introduced in eviertheless, continued up to the time of insured's death to accept payment, by and on behalf of insured, of his dues and assessments and did not offer to return them; and also that the defendant, after plaintiff had furnished proofs of insured's death required plaintiff (in its letter of August 15, 1918), to go to additional expense, time and trouble to furnish identification proofs, when the alleged grounds of the forfeiture thereafter asserted, namely, the claimed misstatements of insured, were within defendant's knowledge and notice all the time from and after March 13, 1918, and certainly not later than April 2, 1918.

[3] The defendant, at the opening of the trial, moved for judgment on the pleadings, which motion was overruled, and this action of the court is urged as error; the defendant contending that plaintiff's reply is inconsistent and a felo de se, in that in one breath it denies that insured made any false statements and in the next breath asserts that he did. But we do not think the reply does this. The reply throughout denies that insured made any false statements, and then it asserts that defendant is estopped from raising such a defense, since after it had knowledge of the claimed matters on which it now attempts to rely, it recognized the policy as being in full force, and dealt with insured, and afterward with plaintiff, on that theory. The two propositions that insured did not make any false statements in his application and that defendant is estopped to raise such a defense are not inconsistent. Eikenberry v. Edwards, 71 Iowa, 82, 32 N. W. 183; Adair v. Kansas City, etc., R. Co. (Sup.) 220 S. W. 920, 923, 13 C. J. 747; 31 Cyc. 75; Sweetser v. Odd Fellows, etc., Ass'n, 117 Ind. 97, 19

dence defendant's answer in the case of Murphy v. Brotherhood of Railroad Trainmen, the decision of which is reported in 199 S. W. 730, as said answer appeared in defendant's abstract of the record filed in that case. In said answer defendant expressly admitted without qualification that "it is a corporation duly existing under and by virtue of the laws of Ohio." This proof was objected to on the ground that it was "incompetent, immaterial and hearsay, not the proper way to prove whether or not the association is a corporation; the by-laws, rules and constitution determine that proposition; it is not a question that can be waived by attorneys or proven by an attempt such as made here."

The constitution and by-laws introduced in evidence by the defendant do not disclose in any way whether defendant is or is not a corporation. There was no evidence offered to show that it was not a corporation. The allegation in the answer introduced was an express affirmative statement, an admission on the part of the defendant herein, and was not mere silence or failure to deny as in Boatman's Savings Institution v. Holland, 38 Mo. 49. It was admissible on the question of whether defendant was a corporation. 22 C. J. 333; 1 Greenleaf (16th Ed.) § 527a; Dowzelot v. Rawlings, 58 Mo. 75; Miller v. Journal Co., 246 Mo. 722, 152 S. W. 40, Ann. Cas. 1914B, 679; Boothe v. Cheek, 253 Mo. 119, 161 S. W. 791.

Defendant's claim that insured made false statements in his application for insurance rests upon the following matters, to wit: (1) The statement in the "physician's certificate" to insured's application for the disability benefit that insured "had an attack of pleurisy in 1910. Shortly afterward his sputum