Weber v. Ancient Order of Pyramids , 104 Mo. App. 729 ( 1904 )

ELLISON, J.

This action is based on a benefit certificate of life insurance. The judgment in the trial court was for the plaintiff.

It appears that plaintiff’s deceased wife was a member of the order known as the “Knights and Ladies of the Fireside,” and a benefit certificate of insurance was issued by that organization. Afterwards this was transferred to defendant, the latter issuing what is termed a “rider,” whereby it contracted to, and did! assume, the obligations and benefits of the original certificate. This rider appears to have been duly executed by defendant’s officers and attached to the original.

The state of the pleadings practically settles the principal points in this case in favor of the plaintiff. The defense is based largely on the statement that defendant did not execute the rider contract: that is to say, that there was no proper proof of its execution by. plaintiff. The answer was not verified by affidavit and therefore the contract made with the defendant as charged and as filed with the petition, stood confessed. Smith v. Reinbaugh, 21 Mo. App. 390; Thomas v. Ins. Co., 73 Mo. App. 371.

But defendant , argues that if the contract was executed by defendant as appears on its face, it is still of no force or obligation, being ultra vires the power of the corporation to receive the deceased as a transferee, or to issue the “rider” contract in the manner claimed. The defense of ultra vires is affirmative matter which should be specially pleaded. It was not so pleaded by defendant and consequently it can not be heard on that head. Williams v. Verity, 73 S. W. 732; that case' cites Louisville Tobacco Co. v. Stewart, 70 S. W. 285. It is likewise supported by Griesa v. Ins. Co., 15 N. Y. Supp., affirmed in 133 N. Y. 619.

Defendant sets up one of its by-laws which requires as preliminary to the issuance of a benefit certificate, that there shall be a medical examination approved by its medical director. And that the deceased did not furnish such examination. It may be answered to this,, that that was an objection which should have been made by defendant before entering into the contract. By executing the contract, defendant waived the prerequisites, it prescribed as necessary to induce it to become obligated. Watts v. Ins. Co., Ill Iowa 90; McElwain v. Ins. Co., 63 N. Y. Supp. 293.

Defendant next sets up that its by-laws require that all benefit certificates issued shall be on forms furnished by the executive council. But nevertheless it made the-present contract without requiring that form and can not now complain. In this connection, defendant says-that no certificate duly signed by the proper officers was issued to deceased. This objection is disposed of in what we said as to there being no denial of the contract under oath.

It is next set up by answer that deceased did not comply with a certain section of the by-laws as to when and how payments were to be made. The particulars of the breach of this law are not alleged, the answer merely stating that she “did not comply with the provisions of said requirements.” The law referred to sets forth in detail what is to be done in certain contingencies and when assessments are to be credited to the member, etc. .The answer should have specified wherein deceased violated the law.

It lastly sets up by answer that no death proofs were made, or offered. It was not necessary that proof should be made, since defendant denied m toto all liability.

After a full examination of the points made against the judgment we conclude they are not sufficiently well founded to authorize our interference. In our view, considering the issues as made by the pleadings, plaintiff did not need some of the evidence he offered.

Under the case made by the pleading and proof the judgment was manifestly for the right party and will be affirmed.

All concur.