Shuler v. American Benevolent Ass'n

BLAND, P. J.' (after stating the facts). — 1. The remark of plaintiff’s counsel, “I have sued the American Benevolent Association about a hundred times,” to which defendant’s counsel objected and excepted, was out of place in the opening statement of the case and may have been prejudicial; but the abstract does not show that the court’s attention was called to the remark and an opportunity thus afforded it to rebuke the offending counsel and withdraw the objectionable statement from the jury. It is only exceptions to the [132] action or non-action of the court that an appellate court may review. Objections to alleged misconduct-, of counsel in the progress of the trial must first be called to the attention of the trial court, thus affording it an opportunity to reprove the offending counsel and withdrew the objectionable matter from the jury. When this is done, if the trial court refuses to act, or acts improperly, such non-action or improper action becomes the subject of review on appeal, if excepted to, and in no other manner can misconduct of counsel in the trial of a cause be presented to an appellate court for review. 2. Complaint is made that the trial court refused to consider the plea in abatement. The matter pleaded in abatement is that defendant was not sued by its true corporate name and was never served with process of summons. The plea alleged that the association was incorporated under the name of the General Assembly of American Benevolent Association. The gentleman who made the affidavit to the plea, L. A. Cunningham, also signed the policy sued on as president of the Association. The policy was filed with the petition; its execution was not denied but was admitted. The policy is headed thus: “Incorporated Under the Laws of the State of Missouri. No. 29836. Age 49 years. The American Benevolent Association. of St. Louis, Missouri ” It may be the association is incorporated under the name and style of the General Assembly of Benevolent Association, but when it issues a policy in the name of the American Benevolent Association leaving off the prefix, General Assembly, and is sued by the name it gives itself in the policy, it would be a palpable fraud on the policy-holder to permit it to abate the suit by pleading the prefix. On its own showing it was es133 topped to plead in abatement the matter which it pleaded and no harm was done defendant when the circuit court ignored the plea. 3. Defendant contends that paragraphs 3 and 6 were not complied with by plaintiff or the insured and for this- reason its demurrer to the evidence should have been sustained. The petition alleges every fact essential to a recovery and that the insured and the plaintiff had complied with all the conditions of the policy, and the abstract recites that plaintiff offered evidence tending to prove all the allegations of the petition. This recital is an admission that plaintiff offered evidence tending to prove a compliance with the requirements of paragraphs 3 and 6, that is, that notice of the sickness was given as required and final proof . also furnished the association. It also appears from the exhibits filed with the deposition of the supreme president of the association, that proofs of the sickness and the duration thereof were timely furnished with and included in the proofs of death. A strict compliance with paragraphs 6 and 7 of the laws of the association would require that notice and proofs of the sickness be made separately from proofs of death, but they were not ineffectual because made in connection with proofs of death. As made they furnished the association with notice and proof of the sickness, its durations and the name of the disease,' and we think substantially complied with the contract. As this evidence was furnished by the defendant, the error in the instruction given by the court, ignoring the questions of notice and proof of sickness, was non-prejudicial to defendant. 4. Defendant moved the court to quash the sheriff’s return to the summons. The court sustained the motion and quashed the return, but held that defendant had entered its appearance to the action by giving plaintiff notice to take depositions and by taking depo [134] sitions on the notice. The defendant objected and excepted to this ruling and then filed an amended answer in which it pleaded want of jurisdiction and also to the merits. In Banker’s Life Ass’n v. Shelton, 84 M'o. App. 634, it was held: “Where defendant appears in the circuit court and files its answer objecting to the jurisdiction with a plea to the merits, takes depositions and obtains a continuance on the merits, it waives the question of jurisdiction.” . If it should be conceded (which we do not) that the taking of depositions, by defendant, on notice served on the plaintiff, was not sufficient in itself to waive jurisdiction, yet when the defendant added to this action, its plea to .the merits, we think it waived jurisdiction of the court over its person. 5. Defendant insists that the judgment should be reversed without remanding the cause for the reason the proof shows that the insured’s sickness was caused by a disease peculiar to women — cancer of the womb. The disease itself was not shown and, in fact, could not have been shown to be peculiar to women for it is common knowledge that it attacks men as well as women, and the fact that it at times shows itself in an organ possessed by women and not by men does not make it a disease peculiar to women, for it could not be peculiar to women unless men are immune from its ravages, and we think the correct interpretation of the provision in the contract, exempting the association from liability for sickness caused by diseases peculiar to women, covers only such diseases as women have and from which men are immune. No reversible error appearing, the judgment is affirmed. Goode, J.: concurs; Nortoni, not sitting.