Cauveren v. Ancient Order of Pyramids

98 Mo. App. 433 | Mo. Ct. App. | 1903

ELLISON, J.

The plaintiff sued defendant on what she terms a life insurance policy containing a contract of insurance as old-line or regular life insurance. The defendant claims the insurance was a beneficiary certificate issued by a fraternal benevolent society. The judgment in the trial court was for plaintiff.

The defendant claims that being a benevolent association and not liable to the law applicable to regular life insurance companies, the plaintiff can not recover for the reason that the deceased died while suspended for non-payment of dues; and that there were no proofs of death. The plaintiff claims that the contract of insurance is a regular life insurance contract, and that while deceased had not paid certain dues, at the time agreed, he did, in fact, pay them prior to his death. It seems (as near as we can gather from the record) that when one becomes delinquent for dues in defendant company, he may regain good standing by making payment accompanied by a health certificate showing him to be still in good health. The deceased made the payment to defendant’s agent Louis, the “local scribe” but did not get a health certificate from him. Louis stated that he would send to deceased (who lived nearby) the “health slip” which could be signed and returned to him. There was evidence of this having been done with others, in the same way, by the same agent, Louis, and no objection made by the company. In this instance deceased died before Louis gave him the certificate as promised. The evidence as a whole, on this branch of the case, tended to show a waiver by defendant of the strictness of its by-laws. The evidence fully justified the court in considering Louis as defendant’s agent and in submitting to the jury defendant’s waiver, under the decision of the Supreme Court in McMahon v. Maccabees, 151 Mo. 522.

But, aside from the foregoing, we are of the opinion that the pleadings fix defendant, for the purposes of this case, as an ordinary life insurance company. The petition declares against it as such and the answer, in effect, admits it; at least, it contains no denial. The petition is that defendant is and was, at the time of making the contract, “a corporation engaged in the life insurance business in the State of Missouri.” The answer was that, “said defendant admits being a corporation and doing business in the State of Missouri and said defendant admits the issuance of a beneficiary certificate to (the deceased) Morris H. Cauveren.” The answer nowhere sets up the kind of corporation it is, other than the admission quoted. It refers to a benefit fund and alleges that neither plaintiff nor deceased were entitled to participate therein on account of not having paid their assessments. The whole answer seems to be drawn on an assumption that the court and everybody concerned knew what sort of company defendant was and that it was unnecessary to state it. If it was defendants purpose to avoid liability as stated in the petition, it should have set out what sort of organization it was and followed this by allegations of deceased’s shortcomings, and thus given itself some definite individuality. It is practically admitted that if defendant is to be considered as a regular life insurance company the acts of the “local scribe,” Louis, were the acts of the company. The consequence must follow that his promise, after accepting back dues, to get the health certificate was binding upon the company, and his failure to do so can not now be claimed.

„What we have said on this head is really of no practical importance so far as the result is concerned, for the reason that, in our opinion (as above set out) defendant was liable, under the authority cited, even considered as á benevolent or fraternal association.

As to the claim that no sufficient proofs of death were furnished, it is sufficient to say that defendant having denied liability in toto, no proofs were necessary.

What we have said necessarily disposes of most of defendant’s case. Other suggestions made are not considered meritorious. The judgment being manifestly for the right party, it is our duty'to affirm it, which is accordingly done.

All concur.