Constable v. MacCabees of the World , 219 Mo. App. 632 ( 1926 )

ON MOTION FOR REHEARING. Plaintiff's counsel, on motion for rehearing, insists that the opinion misconceives his contention in this case, and he restates his contention substantially as follows: That at the time of the making of the contract out of which this action arose, the defendant was a fraternal society making contracts of insurance with citizens of Missouri when it had no license or authority to do business in Missouri, and that the defendant has no right as a foreign fraternal society to claim any exemption from the general insurance laws of this State as against this action; that the contract, having been entered into at a time when the defendant had no license or authority to do business in Missouri, is an old line insurance contract, not subject to change or alteration by what defendant may do after the making of the contract; and that plaintiff never brought this action on any notion that such an action as this could be maintained against a fraternal society that had complied with the Missouri laws and had a license to do business in this State when the contract was made.

In support of this contention plaintiff cites and relies on the following cases: Kern v. Supreme Council, American Legion of Honor, 167 Mo. 471, 67 S.W. 252; Schmidt v. Supreme Court United Order of Foresters, 228 Mo. 675, 129 S.W. 653; State ex rel. National Council of Knights and Ladies of Security v. Allen (Mo.), 269 S.W. 388; Ordelheide v. Modern Brotherhood of America,268 Mo. 339, 187 S.W. 1193; Brasfield v. Modern Woodmen of America, 88 Mo. App. 208; Brassfield v. Knights of the Maccabees,92 Mo. App. 102; Huff v. Sovereign Camp Woodmen of the World,85 Mo. App. 96; Harris v. Switchmen's Union of North America (Mo. App.), 237 S.W. 155; O'Neal v. Grand Lodge, Brotherhood of Railroad Trainmen (Mo. App.), 261 S.W. 128. In all these cases defenses were made upon false representations, or the suicide of the insured, and it was held that the fraternal defendants, not being licensed or authorized to do business in this State, were not exempt from the provisions of the general insurance laws disallowing such defenses. It is shown in the opinion that the non-forfeiture provisions of the general insurance laws can have no application to the insurance contract involved here, and that plaintiff did not plead or present his case in the court below on the theory that these provisions were applicable. Plaintiff's counsel apparently concedes this, but he has not pointed out any other provision of the general insurance laws affecting the insurance contract, from which the defendant claims exemption, or must claim exemption, under the provisions of the fraternal statute, to allow it to exercise its inherent reserved power to alter and re-adjust its assessment rates. It is manifest that the cases cited and relied on by the plaintiff's counsel afford no support for his contention in this case.

The Commissioner recommends that the motion for rehearing be overruled.