Shuler v. American Benev. Ass'n.

• Decision Date: 04 June 1908
• Citation: 111 S.W. 618,132 Mo. App. 123
• Parties: SHULER v. AMERICAN BENEV. ASS'N.
• Court: Missouri Court of Appeals

111 S.W. 618

132 Mo. App. 123

SHULER v. AMERICAN BENEV. ASS'N.

St. Louis Court of Appeals. Missouri.

June 4, 1908.

Rehearing Denied June 23, 1908.

1. APPEAL AND ERROR—PRESENTATION OF GROUNDS OF REVIEW—ARGUMENT OF COUNSEL— OBJECTIONS.

In an action on a mutual benefit insurance policy a remark by counsel for plaintiff, in his opening statement to the jury, that he had sued the defendant about a hundred times, though improper, is not ground for reversal, where defendant failed to call the attention of the court to the remark for the purpose of having the offending counsel rebuked and the statement withdrawn from the jury.

2. INSURANCE—MUTUAL BENEFIT INSURANCE —BENEFICIAL ASSOCIATION — CORPORATE NAME—ACTION.

Where a policy issued by a beneficial association was headed: "Incorporated Under the Laws of the State of Missouri. The American Benevolent Association"—it was proper to designate the association as "American Benevolent Association" in an action on the policy, and a plea in abatement of the action on the ground that no valid process had been served on defendant association would not be sustained, though the association was incorporated under the name the "General Assembly of American Benevolent Association."

3. TRIAL—DEMURRER TO EVIDENCE—ACTION ON MUTUAL BENEFIT INSURANCE POLICY— NOTICE OF SICKNESS OR DEATH.

Where, in an action on a mutual benefit insurance policy, the petition alleged every fact essential to a recovery, and that the insured and the plaintiff had complied with all the conditions of the policy, and the abstract of the evidence recited that plaintiff offered evidence tending to prove all the allegations of the petition, a demurrer to the evidence on the ground that plaintiff has failed to show that he had complied with certain provisions of the policy was properly overruled.

4. INSURANCE—MUTUAL BENEFIT POLICY—NOTICE OF SICKNESS OR DEATH—TIME OF NOTICE.

A provision of a mutual benefit insurance policy, requiring notice of any injury, sickness, or death for which claim is made under the policy to be given in writing within 10 days from the date of such injury, sickness, or death, was complied with in the case of a claim for death by the inclusion of the required information in the notice and proofs of death, though

no separate notice of the sickness preceding the death was given.

5. APPEAL AND ERROR—REVIEW—HARMLESS ERROR—INSTRUCTIONS.

In an action on a mutual benefit insurance policy error in instructions given by the court, in ignoring the question of notice and proof of sickness, was not prejudicial, where defendant itself offered evidence showing substantial compliance with the requirements of the policy as to such notice.

6. ABATEMENT AND REVIVAL—JURISDICTION— PLEA IN ABATEMENT—WAIVER.

Where defendant appears in the circuit court and files his answer presenting an objection to the jurisdiction and a plea to the merits, he waives the question of jurisdiction by taking depositions and obtaining a continuance on the merits.

7. INSURANCE—MUTUAL BENEFIT POLICY— RISKS ASSUMED—"DISEASES PECULIAR TO WOMEN."

Since cancer is a disease from which men are not immune, the fact that a cancer attacks the womb of a female insured does not make it one of the "diseases peculiar to women," within the meaning of a provision of a mutual benefit insurance policy excepting such diseases from the risks assumed by the insurer.

Appeal from Circuit Court, Scotland County; Chas. D. Stewart, Judge.

Action by John Shuler, Jr., administrator of the estate of Lizzie Cashman, deceased, against the American Benevolent Association. From a judgment for plaintiff, defendant appeals. Affirmed.

The action is on a policy of health insurance issued by the American Benevolent Association of St. Louis, a fraternal benefit insurance organization doing business in this state. The petition is in the usual form. Defendant filed the following plea in abatement (omitting caption) duly verified by affidavit: "Now this day comes the defendant, and appearing for the purpose of this plea only, says that plaintiff ought not to have nor maintain his action herein, because at the time of the commencement of said action there was not, nor is there now, any such corporation as the American Benevolent Association named as defendant herein, but that the true name of said defendant is the General Assembly of American Benevolent Association. Defendant further says there is no service in this cause on this defendant, that this defendant has never been summoned as required by law, and plaintiff should not have or maintain this action for reasons herein alleged."

After the plea in abatement was filed, the abstract recites: "Thereupon, without passing upon said plea in abatement, the court ordered the consideration of said cause to proceed, to which action of the court the defendant at the time objected and excepted and now saves herein its exceptions. Whereupon defendant filed its answer, the first and second paragraphs of which are as follows: Now comes the defendant, and says that it is not the American Benevolent Association, as shown by its plea in abatement, is not incorporated under that name, but that its true name is the General Assembly of American Benevolent Association; that it has never been summoned to court; that there is no service as required by law; and it appears in this cause solely because its plea in abatement has been denied, and still insisting that there has been no service of process on it, and for further answer now comes defendant, and for answer to plaintiff's petition denies each and every allegation therein contained. Defendant further says this court has no jurisdiction of this cause or the parties herein and has no jurisdiction of this defendant." The third and fourth paragraphs of the answer are as follows: "Further answering, defendant says that it is a fraternal beneficiary association organized and existing under the laws of the state of Missouri, and operates under a license issued by the superintendent of insurance of Missouri as a fraternal beneficiary association. Defendant admits that it issued to Lizzie Cashman its certificate of membership or policy No. 29,836, which is filed with plaintiff's petition, marked `Exhibit A' and made a part thereof." Following these paragraphs, the answer pleads the provisions of paragraphs 3, 4, 6, and 7 of the policy as special defenses to the action. Paragraph 3 provides that insurance under the policy shall not extend to or cover diseases peculiar to women, and it is alleged that the sickness of the insured, Lizzie Cashman, was from a disease peculiar to women, to wit, cancer of the womb. Paragraph 6 of the policy provides as follows: "Notice of any injury, sickness or death, for which claim is to be made under this certificate, shall be given in writing, addressed to the supreme president of the association, at St. Louis, Mo., with full particulars thereof. Failure to give such written notice within ten (10) days from the date of such injury, sickness or death, shall invalidate all claims under this certificate." It is alleged in the answer that no notice of the sickness of the insured was given defendant, as required by this paragraph. Paragraph 7 of the policy is as follows: "It is agreed that no claim shall be valid against the association unless final proofs thereof upon blanks furnished by the association, sworn to by both the member and his attending physician, are received at the home office of the association in St. Louis, Mo., within one month from the date of the death of said member, or from the date the disability ceases for which...