McDonald v. Bankers' Life Ass'n.

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

55 S.W. 999

154 Mo. 618

McDONALD v. BANKERS' LIFE ASS'N OF DES MOINES, IOWA.

Supreme Court of Missouri.

March 5, 1900.

INSURANCE—PROOF OF DEATH—WAIVER—SUICIDE —INSURANCE CORPORATION — CHARACTER —DETERMINATION—INSURANCE CERTIFICATE — ASSESSMENT COMPANY — FOREIGN LAWS—PLEADING—ARTICLES OF INCORPORATION —BY-LAWS—EVIDENCE.

1. Where, in an action on policies, assured's death was admitted, and insurer, in answer to a letter from the beneficiary's son, acting as her agent, requesting papers for proof of assured's death, replied that it understood that assured had committed suicide, and therefore did not send the proof papers as requested, such answer constituted a waiver of proof of death.

2. Rev. St. 1889, § 5855, applying only to insurance companies other than assessment companies, declares that suicide shall not be a defense to an action on a policy unless it is shown that assured contemplated suicide at the time he applied for the policy; and section 5865 prohibits assessment companies from charging fixed

premiums. Held, that a company issuing policies requiring assured to pay a fixed sum on the issuance of a policy, and to deposit a fixed sum as a guaranty, in consideration of which the company agreed to pay a sum equal to 2 per cent. of the aggregate amount of the guaranty fund, not exceeding $2,000, on the member's death, and providing that on a member's failure to make any payment due to the association at its maturity, in specified months of each year, his guaranty deposit should be forfeited and his membership should cease, was not an assessment company, within the statute; and hence, having failed to allege or prove that assured contemplated suicide at the time of becoming a member, it could not defeat a recovery by pleading suicide as a defense.

3. Whether a foreign insurance company is or is not an assessment company is to be determined by the character of the policy issued by it, and not by the certificate of the superintendant of insurance, which determines only the character of business it is licensed to transact.

4. Laws of another state are not properly pleaded where they are referred to by title and number only, without their terms, tenure, or effect being set out.

5. Where a policy did not refer to the company's articles of incorporation or by-laws, such instruments constituted no part of the contract of insurance, and hence were not admissible in an action on the policy.

In banc. Appeal from circuit court, Buchanan county; Thomas H. Parrish, Judge.

Action by Anna S. McDonald against the Bankers' Life Association of Des Moines, Iowa. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

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. 15,895. Certificate No. 17,431. Office of the Bankers' Life Association, Des Moines, Iowa. Certificate of Membership. This is to certify that in consideration of the statements contained in his application, No. 15,895, which is made a part of this contract, and the sum of sixty-nine dollars, 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 guaranty 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 guaranty 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 guaranty 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 of his death under such circumstances, and we do not send the papers as requested." Thereupon the plaintiff instituted this suit, counting on each policy separately, and, upon an averment that the guaranty fund exceeded $500,000, prayed judgment for $2,046 (that being the amount of each policy, with the guaranty deposit of $46) on each count. It appears from the policy, and also from the pleadings, that the insured paid $69 when the policy was issued, and was required to make further payments, of a sum not stated, in January, April, July, and October every year. The answer admits the issuance of the policies, and asserts its authority to do business under the Iowa law, and the certificate of the state superintendent of insurance of this state, and then pleads two affirmative defenses, to wit: First, the provision of the policy against suicide, and its violation by the insured; and, second, that no proof of loss was ever furnished to it. On the trial the plaintiff read in evidence the...