The complaint in this case consisted of one count, which was an action and claim under a life insurance policy or certificate issued by the appellee corporation upon the life of Leroy P. Blackburn for the benefit of the plaintiff. The complaint is in the form prescribed by the Code (form 12, vol. 2, p. 1196, Code 1907). To this complaint the defendant corporation filed five pleas: First, the general issue; second a special plea setting up a condition of the policy or certificate that, if the insured died within the first year of the insurance, only one-ha.lf of the amount of the insurance, to wit, $1,000, was payable, and that the insured died within the first year. The third, fourth, and fifth were special pleas, setting up the facts: That the defendant corporation was a benevolent order; that it had adopted a constitution and by-law; that the plaintiff’s insured was a member of such organization and, as such member, applied for insurance in the order; that in his application for the insurance he agreed to pay all assessments and dues for which he was liable as a member of such order; that he had never complied with such provision by paying his assessments; that, in consequence thereof, the insurance certificate had never been delivered to the insured; that, under the conditions of the certificate, application, and contract for insurance, there was to be no liability upon the insurer until the application should be accepted by a sovereign physician of the corporation, nor until the certificate should be issued and delivered to him, in person,- while in good health; that the insured had never paid any of the entrance fees; that he had never been initiated or obligated into the defendant order; that he had never had delivered to him the beneficiary certificate, etc. Said pleas set out parts of the application for insurance and the conditions of the policy or certificate of insurance. On
Defendant’s second plea was obviously not good as a plea in bar, for that it did not-go to the right of recovery, but onty to the amount of damages recoverable; but there was no demurrer to this plea, so it must be treated as a plea in bar. Neither of the special replications filed by the plaintiff to defendant’s pleas was good, because each constituted a departure from the complaint; the complaint being an action ex contractu upon the insurance policy. Whereas, the replications sought to recover for a breach of duty, which would be in case, and therefore a departure, but no ruling of the court was invoked, and consequently they should be considered and treated as if good.
There ivas no demurrer or special replication to plea No. 2, and consequently issue was joined upon this plea; and, if the defendant had proved this plea, he was entitled to a verdict notwithstanding plaintiff might have proved his special replications to special pleas 3, 4, and 5. Consequently, it would not change the proper verdict in this case had the plaintiff been entitled to the general affirmative charge a,s to his special replications.
The defendant was clearly entitled to the general affirmative charge, which was given in this case, for two good and sufficient reasons: First, for that, before there could be a verdict against it under the issues in this case, the plaintiff must prove the material averments of the complaint, which she wholly failed to do; second, plea .No. 2 was proven without conflict — was in fact not disputed — and consequently the defendant was entitled to the general affirmative charge. Its special plea being established, without conflict of the evidence and beyond doiibt, it was entitled to a verdict upon this plea. . ..
It is clear, under the undisputed evidence in this case that there could be no recovery upon this insurance policy, for the reason that it was never delivered, either actually or constructively. In fact, it was not issued until after the death of the insured, and, of course, could not be issued after his death or delivered, in accordance with the contract.
The plaintiff may have a right of action (though as to this we do not decide); but, if so, certainly it is an action of ease, against the corporation or its officers or agents, for a breach of duty or for negligence in failing to issue and deliver the policy during the lifetime of the insured. The case is not brought within the rule of cases cited by counsel for appellant, and other cases,
No error appearing in the record, let the judgment of the circuit court be affirmed.
Affirmed.