Ancient Order of Pyramids v. Dixon

45 Colo. 95 | Colo. | 1909

Mr. Justice Bailey

delivered the opinion of the court:

’ Counsel for appellants, defendants below, urge that because of the failure of the pleader to allege in his complaint that the payment of the debt to Allen was made prior to the death of Dixon, and also that since the averments thereof show that the proofs of death were furnished by plaintiff rather than by said Allen, the substituted beneficiary, as required by the terms of the policy, the complaint is left bare of facts to constitute a cause of action. We do not so regard the situation. The matters referred to being purely technical and not of substance, are not available under general demurrer, particularly in face of the material facts which were well pleaded, the- truth of all of which the demurrers admit, for the purpose of a decision upón^the questions raised by them. The attention of the court should have been directed to the omissions referred to, if important in any view of the case, by motion to make more specific or by special demurrer. •

The main contention of counsel for appellants, however, is that under the statute law of Missouri where the appellant The Ancient Order of the Pyramids was incorporated, as is shown by the complaint, it was. incompetent and unlawful for the association to issue the certificate of insurance in question naming L. A. Allen as beneficiary therein under the title of “Legal Advisor” or at all, it nowhere appearing that said Allen bore such relation to the insured as permitted of his being named as beneficiary in that' sort of certificate, because of certain express provisions of the law in that state, and therefore the certificate is a nullity and void under said statutes and no recovery may be had upon it. A complete and conclusive answer to this suggestion is found in the fact that there is nothing shown in the case either by pleading or otherwise that permits the appellants to rely upon this contention. Had they pleaded by way of answer to the complaint and set forth and relied upon these Missouri statutes, now referred to for the first time in this case so far as the record discloses, and offered them in proof, they would doubtless now be here for consideration at least. Not so, however in 'the present state of the record. The mere fact that it appears from the complaint that the said Ancient Order of the Pyramids was incorporated under the laws of the state of Missouri is not sufficient to require, or for that matter to even permit, this court to hunt out and examine all or any of the laws of that state bearing upon the government and management of such institutions.. If th$ appellants desired the court’s consideration' oil* such laws they should have pleaded and offered them in testimony, or such thereof as were deemed material. The omission so to do is fatal to the appellants’ right to here now exhibit them in briefs and rely upon them for the first time. Besides, even if all.that is- claimed for these laws by appellants be true, and if the act of the association complained of was in fact beyond its rightful power- by reason of their provisions, still the association, under the facts of this case, would not be permitted to take advantage of this defense in a suit to recover upon the certificate in question. It is a settled principle of law that a society of this sort is estopped, after receiving the benefits of a completed transaction such as this, from pleading “ultra vires,” and it will not be allowed to reap the benefit and advantage of such alleged wrongful act, whether done through ignorance or deliberately.. Want of power to act cannot be invoked to aid a party to perpetrate and perpetuate a wrong and injustice.

The record shows that, for more than six years immediately prior to his death, the deceased, Dixon, paid his dues and assessments to this society, and in all respects discharged every obligation which he owed it in order to keep the certificate in question in full force and effect, and that the association accepted and retained such payments to its own use, benefit, profit and advantage, and it will not now be heard by this court to deny its liability to the widow of the insured under this certificate, she having been originally named therein as beneficiary, and remained, to all intents and purposes, the real and actual beneficiary, although for a time the certificate was temporarily assigned merely as security to a third party, for such was the effect of the transaction with Allen, whose claim has now been fully paid and discharged.

Upon every consideration of law, equity and humanity the judgment of the trial court finds abundant support and should be affirmed, and it is so ordered. Judgment affirmed.

Chief Justice Steele and Mr. Justice White concur.