The plaintiff sues as administratrix on a policy issued to her husband, J. C. Courtney, deceased. The policy contains an indemnity against sickness, wherein it is provided that, a member, “After continuous membership for the six months next prior to commencement of illness, while he is ill and confined to his bed, he will be entitled to benefits at the rate of forty dollars per month.” The deceased was taken sick on the 27th day of September, 1902, and was confined to his bed by such sickness for a period of twelve months, when he died. It was admitted that deceased had paid all his dues or premiums to the defendant up to the 25th day of September, two days before he was taken sick, but it is denied that he paid any further dues thereafter. The dues were payable in advance. It is admitted that it was the duty of the deceased to pay his premiums on the said 25th day of September, for the non-payment of which the defendant cancelled the policy. But plaintiff insists that she paid said dues to one W. S. Snyder, who represented himself as the agent of defendant. Defendant admits that if such payment shall be held to be legal, then all dues were paid on the policy up to the 25th day of October, 1902. Plaintiff contends, however, that by the terms and conditions of said policy it is provided that, in consideration of the issuance of the same, and the member being permitted to pay for the same in installments, the association will retain from the indemnities the unpaid portion of the annual dues.
The cause was tried before the court sitting as a jury. The finding was for the plaintiff for twelve months sickness at forty dollars per month with interest, less eleven months’ dues. No instructions were
We think it was sufficiently shown that the plaintiff was justified in the payment of said dues to Snyder, the alleged agent of defendant. At least a dozen witnesses testified that Snyder, as agent of defendant, received premiums from them. And it was further shown that Courtney at a former time had a loss under the policy in suit and that Snyder adjusted the loss and paid the indemnity. Under its course of conduct, defendant is estopped from denying Snyder’s agency to receive payment of premiums. A condition in a policy of insurance that all payments must he made to the company and not to its local agents may he waived hy its course of conduct. [Thompson v. Ins. Co., 169 Mo. 12; Wagaman v. Ins. Co., 110 Mo. App. 616; Nickell v. Ins. Co., 144 Mo. 432; Andrus v. Ins. Co., 168 Mo. 163; James v. Life Assn., 148 Mo. 1; Suess v. Ins. Co., 86 Mo. App. 10.] And: “It is now held that though the authority of the agent is limited and knowledge of the limitation is brought home to the assured, yet the acts of the agent are considered those of the company itself and they may bind the company though exceeding the limitation.” [Bush v. Ins. Co., 85 Mo. App. 158.]
As the dues were paid after the deceased had been sick for one month, at which time he was entitled to indemnity in the sum of forty dollars, the court gave credit to defendant out of said sum against plaintiff’s demand the sum of $16.50, which was equal to the amount of all dues unpaid at the time of Courtney’s death. This was strictly in accord with the terms of the policy.
The defendant is an organization with power: “To issue contracts of life, life and health and accident, health, accident and endowment, or health and accident,
Under the terms of the policy, as has been said, the deceased while sick in bed was entitled to benefits at the rate of forty dollars per month. All the by-laws were made a part of the policy. One of these reads as follows: “Indemnity for loss of limb or sight, or for time lost, shall only be paid to the member himself, and, in case of his death before its payment, all such indemnity due the member shall revert to the association, and the only liability of the association to his beneficiary shall be for the funeral benefits, which in no case shall exceed one hundred dollars.” And further: “In no event shali the association be liable for both weekly indemnity and funeral benefits where death ensued as the result of an accidental injury or of an illness.” The obvious intent of the by-law was to qualify the terms of the policy in the event the insured died before he received payment of indemnity on account of sickness, and to provide that the indemnity '•'should be applied to funeral benefits.
And the policy further provides: “After continuous membership for twelve months next prior to death, funeral expenses will be defrayed in a sum not exceeding one hundred dollars.” But the by-laws provide that, notwithstanding the assured has paid all his assessments, the beneficiary is not entitled to the benefit of funeral expenses if he has been paid the indemnity and vice versa. In Boward v. Bankers’ Union, 94 Mo. App. 442, and Goodson v. Nat. Masonic Accident Assn., 91
But in the latter case it was also held that notwithstanding the rule, it had no application where the policy specified the amount of the indemnity as provided by section 7903, Revised Statutes 1899. The statute reads: “Every policy or certificate hereafter issued by any corporation of this State doing business in conformity with the provisions of this article, and promising a payment to be made upon a contingency of death, sickness, disability or accident, shall specify the exact sum of money which it promises to pay upon such contingency insured against, and . . . the corporation shall be obligated to the beneficiary for such payment at the time and to the amount specified in the policy or certificate.” Section 7901, idem, places foreign insurance companies (of which defendant is one) doing business in this State of the same character, under the provisions of said section 7903. By the terms of the policy the assured’s liability was not limited to fixed premiums. Consequently, it is governed by said section 7903, which regulates insurance on the assessment plan. The section requires that the indemnity shall be for a fixed sum. And as the amount of such indemnity was fixed by the recitations of the policy at forty dollars per month, such recitation and not the by-laws govern.
The by-laws further provide that: “Where the disability is the result of sickness, indemnity shall not be paid for a greater period of time than ten weeks.” It is defendant’s contention, under the provisions of the bylaws, that it is only liable, if at all, for ten weeks indemnity. The plaintiff objected to the introduction of said by-law, because it was contrary to the terms of the policy, to the terms of the statute, and because it was unreasonable and oppressive. This by-law is not, how
It was admitted on the trial that the plaintiff had a suit pending against' the defendant for funeral expenses. There is no such defense relied on in defendant’s answer. We presume that the court held that it was not a matter in issue. However that may have been, it was no defense to plaintiff’s cause of action. If the plaintiff is only entitled to recover in this action, It is no defense to say that she has another suit pending for a different cause of action. If she is entitled to recover only on one of such causes of action, a judgment on one would preclude her from recovering on the other. She has the right to prosecute one and dismiss the other. In other words, she has her election.
The by-laws exempt defendant from liability in certain instances, among which, where the debility is caused by bronchitis. The evidence showed that the assured suffered from “senile bronchitis and catarrhal condition of the stomach and duodenum.” The defendant insists that as the assured was sick from bronchitis it is not liable. The question goes to the whole case.
The objection to the sufficiency of the petition is not well taken.
The plaintiff was only entitled to judgment for ten weeks’ indemnity. It was therefore error for the court to render judgment for twelve months’ indemnity, for which reason the cause is reversed and remanded.