#### MART L. NEWLAND, Respondent, v. MODERN WOODMEN OF AMERICA, Appellant.

Kansas City Court of Appeals,

February 17, 1913.

1. FRATERNAL BENEFICIARY ASSOCIATION: Affirmative Defense: Suicide. The plaintiff seeks to recover on a death benefit certificate issued to her husband, who committed suicide. The certificate stated there could be no recovery, if suicide was committed within three years after it was issued. This defense being affirmatively pleaded, the trial court found for plaintiff, on the ground that the defendant failed to plead1 and prove all the elemental facts of a valid defense founded on an exemption peculiar to such an association. *Held,*that the death of the husband was self-inflicted is a fact established beyond dispute as are also the facts on which the right of defendant to interpose the defense of suicide is, predicated, and plaintiff was therefore not entitled to recover.

2. -: Pleading:- Proof of License to do Business, To be entitled to the benefit of the liberal laws and rules of construction pertaining to death benefit certificates issued by fraternal beneficiary associations, it devolves on such associations to plead and prove not only that they possess the essential qualifications of such societies, as prescribed and defined in Sec. 7109, R. S. 1909, but also, when incorporated in another state, that they have been admitted to do business in the State in the manner provided in Sec. 7112, R. S. 1909.

3. -: -: -. The certificate of incorporation or that of authority to do business in this State, are not conclusive of the character of the business done, but must be proven by facts tending to show that the association is conducted as one which our laws define to be a benevolent association.

Appeal from. Sclmyler Circuit *Court.*— Ron. *Nat. M. Shelton,*Judge.

Reversed.

*Benjamin D. Smith*and *Bailey & Rart*for appel lant.

*T. L. Buford,*and *Fogle & Fogle*for respondent

JOHNSON, J.

This is an action on a death benefit certificate issued by defendant September 11, 1905, *312to Isaac H. Newland, a farmer living near Lancaster in Schuyler county. Plaintiff who is the beneficiary designated in the certificate was the wife of Newland whose death occurred at his home January 29, 1906. All dues and assessments had been paid by him but defendant on receipt of proofs of death denied liability. This suit followed and the cause pleaded in the petition is one founded on an ordinary policy of life insurance.

The substance of the affirmative defenses alleged in the answer is that defendant is a fraternal beneficiary society incorporated in the state of Illinois and authorized to do business in this State; that the certificate in controversy is not an ordinary policy of life insurance, but is a fraternal beneficiary contract containing an express stipulation against suicide and that the death of Newland was self-inflicted. This answer was not assailed by demurrer or motion and the affirmative defenses were put in issue in a reply filed by plaintiff. A jury was waived and at the beginning of the introduction of evidence by defendant, counsel for plaintiff objected to “any evidence to support the allegations of their answer because it does not state facts sufficient to constitute any answer to plaintiff’s petition.” The objection was overruled “for the present” and the court heard evidence of defendant offered in support of the affirmative defenses. At the close of all the evidence the court, at the request of plaintiff, gave a declaration of law to the effect that under the pleadings and evidence, plaintiff is entitled to recover and rendered judgment accordingly. All the declarations of law asked by defendant were refused and after unsuccessfully moving for a new trial and in arrest of judgment, defendant appealed.

An analysis of the rulings of the court on the declarations of law asked by the respective parties, discloses that the judgment is based on the conclusion that defendant failed to plead and prove all the ele*313mental facts of a valid defense founded upon an exemption peculiar to a fraternal beneficiary certificate and, therefore, that the certificate in question should be regarded and treated as an ordinary policy of life insurance against the enforcement of which the defense of suicide is not available. .

To be entitled to the benefit of the liberal laws and rules of construction pertaining to death benefit certificates issued by fraternal beneficiary associations, it devolved on defendant to plead and prove not only that it possessed the essential qualifications of such societies as prescribed and defined in section 7109, Revised Statutes 1909, but also that being incorporated in another state, it had been admitted to do busi-' ness in this State in the manner provided in section 7112, Revised Statutes 1909. [Gruwell v. Knights and Ladies of Security, 126 Mo. App. 496.] Further defendant was required to plead and prove, that during the life of the certificate in controversy it had conducted its business affairs in this State in compliance with the provisions of the statutes relating to such societies. That is to say, that it had been carried on for the sole benefit of its members and their beneficiaries and not for profit; that it had maintained a lodge system in this State with ritualistic form of work and representative form of government; that it had made and given effect to provisions for the payment of benefits in case of death and had provided for the payment of benefits and expenses from assessments of dues collected from its members.

As is well said by the St. Louis Court of Appeals in Thompson v. Royal Neighbors, 154 Mo. App. l. c. 121. “Even the certificate of incorporation or that of authority to do business in this state, are not conclusive of the character of the business done. That is to be determined, in part it is true by an examination of the certificate issued, but it also rests on proof of acts outside of even the certificates; proof of facts *314tending to show that the association is conducted as .one which our laws define to be a benevolent association. ” . '

This rule has not been impaired by the later decision of the Supreme Court in Armstrong v. Modern Brotherhood, 149 S. W. 459, 245 Mo. 153, wherein it is held that the ruling of the insurance commissioner in granting a foreign association license to do business in this State, though not conclusive of the qualifications of such association to operate in this State under the provisions of our laws, is entitled to great weight “ where there is a real doubt as to the meaning of the law,” since it is “the construction of the law placed upon it by the executive, officer of the State charged with the duty of enforcing it.” In cases such as the one under consideration the issues of the right of such foreign association to do business in this State and of its compliance with the requirements of our laws, under proper pleadings are subjects of judicial inquiry and determination, and the burden is on the association to show affirmatively that it has fully complied with the laws and is entitled to the benefits they confer. We, therefore, hold that in order to avail itself of the defense of suicide, defendant was required to plead and prove, not only that prior to the issuance of the certificate it had been incorporated in the state of its origin as a fraternal beneficiary society and, as such, had been licensed to do business in this State, but that its business had been conducted for the sole benefit of its members and their beneficiaries and not fbr profit; that it had maintained a lodge system with ritualistic form of work and'representative form of government, had made provision for the payment of death benefits and had procured funds for the payment of benefits and expenses from assessments or dues collected from its members.

Turning to the answer which is very voluminous, we find a sufficient compliance with the rules of plead-*315mg we have just stated. Among other allegations are the following:

> “Defendant further avers that it now is and 'was at all of the times herein and in plaintiff’s petition mentioned, a fraternal beneficiary society as defined in the statutes of the State of Missouri, relating to fraternal beneficiary societies; that it is a corporation formed and carried on for the sole benefit of its members and their beneficiaries, and not for profit; that it has a lodge system with a ritualistic form of work and representative form of government, and makes provision for the payment of benefits in case of death of its members; that no provision is made for the payment of benefits in case of sickness, physical disablity' or old age; that the fund from which the payment of benefits is made and the funds from which the expenses of the defendant society are defrayed are derived from assessment or dues collected from its members; that payment of death benefits is only made to the families, heirs, blood relatives or to persons dependent upon the member; that prior to and at the time of the issuance of the certificate herein sued on it has applied for admission to transact business as a fraternal beneficiary society under the statutes of the State of Missouri and that it has complied- in all respects with the provisions and regulations contained in said Missouri statute relative to fraternal beneficiary societies organized in other states applying for admission to transact business in the State of Missouri, and that it now is and was at. all times mentioned in the plaintiff’s petition duly authorized by the Insurance Department of the State of Missouri to transact its said business in the State of Missouri as a fraternal beneficiary society under the provisions of ‘An act defining and regulating fraternal beneficiary societies, orders, and associations providing penalties for violation thereof; approved March 16, 1897; now found and contained in article 2, chap*316ter 12, of tlie Revised Statutes of Missouri for 1839;’ and that at all the times mentioned in the plaintiff’s petition and in this answer defendant was doing business as a fraternal beneficiary society under and in compliance with the laws of the State of Missouri pertaining to fraternal beneficiary societies, and that the certificate herein sued on was issued and delivered to the said Isaac PI. Newland by the defendant in its regular course of business in the State of Missouri and in strict compliance with the laws of the State of Missouri relating to fraternal beneficiary societies and associations.”

The principal objection to this part of the answer is that as to some of the constitutive facts it pleads only conclusions. This objection would have more merit had it been presented earlier in the case by demurrer or motion to make more definite and certain. Plaintiff did not assail the answer in such manner but waited until the trial and, after having joined issue, attempted for the first time to raise the question of the insufficiency of the answer by a general objection to the introduction of any evidence in support of the affirmative defenses. Such practice smacks of ambuscade and is not favored by the courts. We must consider the answer as thought it had been suffered to .pass unchallenged until after verdict and apply to its allegations the most liberal rules of interpretation. The real question is whether or not it would support a judgment in favor of defendant and that question must be answered in the affirmative. Some of the allegations tested by the strict rules of construction applicable to a pleading attacked by demurrer might be subject to the criticism of being the statements of conclusions rather than of facts, but under the liberal rules of interpretation we should employ at this time, they should be accepted as sufficient statements of facts, since plaintiff, in joining issue, so regarded-*317them and cannot be said in any wise to have been misled by them.

We regard the answer as properly raising the defense of suicide and we find the proof offered by defendant shows beyond question that defendant, prior to the issuance of the certificate, was a fraternal beneficiary society, duly admitted to do business in this State; that it was conducting its business in strict compliance with our laws and that the certificate was issued to Newland as a member duly admitted and initiated in one of the local lodges operated in this State. We cannot regard the argument that defendant failed to prove it maintained in this State a lodge system and representative form of government, as being supported by a reasonable understanding of the evidence Avhich discloses very clearly that the business and operations of the defendant society are conducted on a uniform plan-laid in conformity to the laws of this State, as well as to those of the State of Illinois, and that in detail, as well as in their general scope, the operations of defendant have the lodge system and representative governmeüt as their basic rule.

• The evidence of defendant certainly supports its claim to the benefits of our laws pertaining to fraternal beneficiary societies and the learned trial judge erred in ruling to the contrary.

In the application for membership made by New-land appears the statement, “I further understand and agree that this society does not indemnify against death from suicide, sane or insane, if occurring Avithin three years from date of certificate.” The certificate contains the stipulation, “If the member holding this certificate . . . shall within three years after becoming a beneficial member of this society, die by his OAvn hand, whether sane or insane . . . then this certificate shall be null and void and of no efféct,” etc. The by-laws in force at the time of the issuance of the certificate and thereafter, and which were ex*318pressly made a part of the contract, contained the same provision. Therefore the terms of the contract made by Newland for the benefit of plaintiff expressly precluded a recovery by her in the event his death should occur within three years from the date of the certificate and be self-inflicted. The death occurred in that period and we turn to the question of its cause.

In the proofs of death sent by plaintiff to defendant, all of the witnesses wdiose affidavits were appended, including that of- plaintiff, stated that the death of Newland resulted from suicide. This admission of plaintiff did not prevent her from contesting at the trial the issue of the cause of her husband’s death, but-she offered no evidence on that subject. Defendant read the deposition of the son of plaintiff and her deceased husband who was an eyewitness of his father’s death. lie testified that when he came into one of the rooms of their home he saw his father sitting in a chair with one of his children on his knee. In a moment his father put the child down, arose and went into the kitchen and shortly returned with a butcher knife which he was attempting to conceal beneath his coat. The witness asked him “what he was going to do and he never answered.” lie left the house and as he passed through the door began running towards the orchard. The witness followed but did not overtake his father who stopped when he had run, perhaps a hundred feet and 'twice cut his throat with the knife which, after starting to run, he no longer attempted to conceal. He died immediately from the effects of these self-inflicted wounds.

Thus it appears from undisputed evidence, as well as from the admission of plaintiff which she does not attempt to show was made under any misapprehension of the- true facts of the tragedy or of the proper inference that should be drawn from them, that the cause of her husband’s death was suicide, and we say the *319learned trial judge should have so held as a matter of law.

In the recent case of Richey v. Woodmen of the World, 163 Mo. App. 235, we discussed the question of question of whether or not the defense of suicide could he proved in law and came to the conclusion that the question should he answered in the affirmative. As we said in that case the presumption against suicide is very — strong as the universal instinct for life — but it may be overcome by proof, just as the instinct for life in instances may be overcome by a desire for death. Where the evidence of suicide is undisputed and is so strong that the opposite conclusion could not be said to have an evidentiary foundation but would be the product of mere conjecture or whimsical deduction, there is ño issue to go to the jury, since the functions of the triers of fact are confined to the solution of controverted and disputable issues of fact and do not include the right to conjecture and guess about facts and inferences that are all one way and offer no- ground for a reasonable difference of opinion,

That the death of Newland was self-inflicted is a fact established beyond dispute as are also the facts on which the right of defendant to interpose the defense of suicide is predicated. The court should have given the declaration of law asked by defendant to the effect that under the pleadings and evidence plaintiff is not entitled to recover.

The judgment is reversed.

All concur.