McDonald v. Bankers Life Association of Des Moines

• Decision Date: 05 March 1900
• Citation: 55 S.W. 999,154 Mo. 618
• Parties: McDONALD v. BANKERS LIFE ASSOCIATION OF DES MOINES, IOWA, Appellant
• Court: Missouri Supreme Court

55 S.W. 999

154 Mo. 618

McDONALD v. BANKERS LIFE ASSOCIATION OF DES MOINES, IOWA, Appellant

Supreme Court of Missouri

March 5, 1900

Appeal from Buchanan Circuit Court. -- Hon. James H. Parrish, Judge.

Affirmed.

O. B Ayres and A. W. Brewster for appellant.

(1) The trial court erred in overruling the objections of the defendant to the introduction of the letter of L. L. McDonald and the reply of E. E. Clark thereto, because the letters did not tend to prove the making of the proof of the death of Daniel McDonald by the plaintiff, or the waiver of such proof by the defendant association; the making of such proof not being admitted in the pleadings, nor was the death of the insured admitted by the answer. May on Ins. (3 Ed.), secs 36, 469; Bacon on Ben. Soc. and Life Ins. (2 Ed.), sec. 436. (2) The trial court erred in holding that the plaintiff was entitled to recover without proof of the death of the insured; the plaintiff having alleged in each count of her petition, the death of the insured and the making of the proof of her claim, and the defendant having joined issue with each of these allegations. Northrup v. Mississippi Valley Ins. Co., 47 Mo. 435; 1 Am. & Eng. Ency. of Plead. and Prac., p. 803. (a) Under a general denial the simple inquiry is, has the plaintiff proved what he has alleged in his petition. School Dist. v. Shoemaker, 5 Neb. 36; Jones v. Seward Co., 10 Neb. 154; Dutcher v. Dutcher, 39 Wis. 651; Finley v Quirk, 9 Minn. 194; Stone v. Quall, 36 Minn. 46; Nichols v. Winfrey, 79 Mo. 544; Ingle v. Jones, 43 Ia. 286; Johnson v. Pennell, 67 Ia. 669. (3) The appellant offered to prove that the insured willfully took his own life. This was clearly material under the issues in this case. Secs. 5860, 5872, 5869, R. S. 1889; Handforf v. Mass. Ben. Ass'n, 122 Mo. 50; Theobold v. Supreme Lodge Knights of Pythias, 59 Mo.App. 87; Sparks v. Knights Templars, 61 Mo.App. 109; Scheele v. State Home Lodge, 63 Mo.App. 277. (4) The trial court erred in sustaining the plaintiff's objection to the introduction of the articles of incorporation and by-laws of the defendant association for the purpose of showing the manner of its doing business and that it was doing business as an assessment association. The articles of incorporation and by-laws of a mutual assessment association are binding upon the members and their beneficiaries. Bacon on Ben. Socs. (2 Ed.), secs. 48, 81, 88, 91, 116, 130; May on Ins. (2 Ed.), secs. 60, 146; 3 Am. and Eng. Ency. of Law (2 Ed.), p. 1048c; Morawetz on Priv. Corps. (2 Ed.), secs. 318, 641, 645, 939; State v. Standard L. Ass'n, 38 Ohio St. 281; Rockhold v. Canton Masonic Mut. Ben. Soc., 129 Ill. 455. (5) The general laws of the State are, by intendment, considered as having been made a part of the charter of incorporation, unless the contrary is therein expressly provided. Articles of incorporation, under general laws, are always to be taken in connection with the laws of the State determining the status and the powers of the corporation. 3 Am. and Eng. Ency. of Law (2 Ed.), p. 1049d; O'Neill v. Ins. Co., 71 Wis. 621; Supreme Council, etc., v. Perry, 140 Mass. 580. (a) A statute enlarging the powers of an association need not be formally adopted by it, but takes effect immediately. 3 Am. and Eng. Ency. of Law (2 Ed.), p. 1049; Citizens' Mut. F. Ins. Co. v. Sortwell, 8 Allen 217; Briggs v. Earl, 139 Mass. 473; Supreme Council, etc., v. Perry, 140 Mass. 580; Elsey v. Odd Fellows Mut. Ben. Relief Ass'n, 142 Mass. 224; Stewart v. Father Mathew Soc., 41 Mich. 69; State v. Citizens' Ben. Ass'n, 6 Mo.App. 163.

H. K. White for respondent.

(1) The Supreme Court will not reverse this case because of the refusal of the court below to permit the Iowa statute to be read in evidence. First, because appellant has not preserved in the bill of exceptions the act offered by defendant, and the action of the court below will be presumed to have been correct. Robidoux v. Casselleggi, 81 Mo. 465; Wood v. Norton, 85 Mo. 301; Overholt v. Vieths, 93 Mo. 425; Fitzgerald v. Barker, 96 Mo. 664; State ex rel. v. Leland, 82 Mo. 263. Second. Because the act of the state of Iowa should have been set forth in terms and not by reference, or by stating its effect in the opinion of the defendant. Story on Conflict of Laws, paragraph 637; Maxwell on Code Pleading (3 Ed.), p. 89; Bliss on Code Pleading (2 Ed.), par. 287; Morrisy v. Wiggins Ferry Co., 47 Mo. 525; Flato v. Milhall, 72 Mo. 525; Baucher v. Gregory, 9 Mo.App. 104; Myers v. Chicago, etc., Railroad Co., 72 N.W. 694; Lowrie v. Moore, 48 P. 238; Carey v. Railroad, 5 Ia. 357; Bean v. Briggs, 4 Ia. 494; McCloud v. Railroad, 58 Vt. 727; Sells v. Haggard, 21 Neb. 357; Swamp v. Huffnegel, 111 Ind. 453. (2) Under the pleadings in this case and contract of insurance, including the application, the offers to introduce the Iowa statute, the by-laws of the defendant company, and the oral testimony of the witness Ayres, were properly refused. First. The answer raised no issue as to the character of the contract sued upon by showing the terms of the contract, and that the payment of the benefit premiums depended upon the collection of assessments upon other persons holding similar contracts. Under familiar rules of pleading, this was necessary. R. S. 1889, sec. 2049; Bliss on Code Pleading, sec. 352; Northrup v. Ins. Co., 47 Mo. 443; Kersey v. Garton, 77 Mo. 647. Second. The defense of suicide is or is not maintainable according to the nature of the contract in suit regardless of the form of license issued by the insurance commissioner, and the contracts sued upon are not assessment insurance contracts as defined by Missouri statutes. R. S. 1889, secs. 5860, 5862, 5865; Hanford v. Mass. Mut. Ben. Ass'n, 122 Mo. 59; Jacobs v. Life Ass'n of Omaha, 142 Mo. 58; s. c., 146 Mo. 523; Toomey v. Supreme Lodge, 147 Mo. 139; s. c., 74 Mo.App. 521; Logan v. The Fidelity and Casualty Co., 146 Mo. 114; Havens v. Ins. Co., 123 Mo. 417; Daggs v. Ins. Co., 136 Mo. 382; O'Keife v. Ins. Co., 140 Mo. 566. (3) The letter of plaintiff's agent requesting blank proofs of loss, and the letter of defendant's vice-president in reply thereto, constituted a waiver of the proof required by the policies, and the court did not err in receiving in evidence and so instructing the jury. Bliss on Life Ins. (1 Ed.), secs. 252, 263; Cook on Life Ins., pp. 213, 214; Rippstein v. St. Louis, etc., Co., 57 Mo. 86; Ins. Co. v. Pendleton, 112 U.S. 709; Dial v. Valley Mutual Ins. Co., 29 S.C. 56; Minsing v. Ins. Co., 36 Mo.App. 602; Maddux v. German Ins. Co., 39 Mo.App. 198; Jefferson v. Ins. Co., 69 Mo.App. 126; Nickell v. Ins. Co., 144 Mo. 432; James v. Ins. Co., 148 Mo. 1.

MARSHALL, J. Robinson, J., absent.

OPINION

In Banc.

MARSHALL J.

-- This is an action upon two policies of insurance (called by respondent mere certificates of membership).

On the 16th of August, 1890, the defendant, an insurance company, organized under the laws of Iowa, as an assessment company, and licensed by the State Superintendent of Insurance to do business in this State, as such assessment company, issued to Daniel McDonald two policies, which were exactly alike except as to number, in words and figures as follows:

"Application No. 15895. Certificate No. 17431.

OFFICE OF BANKERS LIFE ASSOCIATION.

Des Moines, Iowa.

CERTIFICATE OF MEMBERSHIP.

"This is to certify, that in consideration of the statements contained in his application, No. 15895, which is made a part of this contract, and the sum of sixty-nine dollars, one Daniel McDonald, by occupation president Merchants Bank, aged 46 years, has this day been admitted to membership in this association, and that in the event of his death, during membership, his beneficiary shall be entitled to a sum of money equal to two per cent of the aggregate amount of the guarantee fund, as may appear by the books of the association on the first day of the month in which the death of such member may occur; provided, that the beneficiary of the deceased member shall not receive over two thousand dollars for this certificate of membership, and the return of the guarantee deposit given by him to the association, amounting to forty-six dollars.

"Upon the failure of the above named member to make any payment due from him to the association at its maturity in January, April, July and October, of each year, his guarantee deposit shall be forfeited, and his membership shall thereupon cease.

"This certificate to become null and void, if death occur from self-destruction, the member being sane or insane, or if the member is or shall become habitually intemperate in the use of intoxicating liquors, chloral, cocaine or opium.

"The amount due under this contract to be paid to Annie S. McDonald at the home office of the association upon satisfactory proof of claim, to be supplied by the beneficiary, in the event of the death of the beneficiary prior to that of the member, or in case none is named, the benefit then to be payable to the legal representatives of deceased member.

"Witness the signature of the president, countersigned by the secretary and the seal of the association hereto affixed the date above written.

"Edward A. Temple, President.

"A. C. Stilson, Secretary."

The insured committed suicide on the 3d day of September, 1896. At that time he was not in arrears in any manner to the defendant. On the 7th of September, 1896, his son wrote to the defendant saying: "Please forward proof paper to Lee L. McDonald for death of D. McDonald of this city." The defendant answered: "We have your letter of the 7th inst. asking for papers for proof of death of D. McDonald. We are informed that Mr. McDonald took his own life. If that is the fact this association has not promised to pay any sum on account...