55 S.W. 999 (Mo. 1900), McDonald v. Bankers Life Association of Des Moines

Citation:55 S.W. 999, 154 Mo. 618
Opinion Judge:MARSHALL, J.
Party Name:McDONALD v. BANKERS LIFE ASSOCIATION OF DES MOINES, IOWA, Appellant
Attorney:O. B. Ayres and A. W. Brewster for appellant. H. K. White for respondent.
Judge Panel:MARSHALL, J. Robinson, J., absent.
Case Date:March 05, 1900
Court:Supreme Court of Missouri

Page 999

55 S.W. 999 (Mo. 1900)

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...

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