delivered the opinion of the court:
The action below was assumpsit, brought in the Superior Court of Cook county by the'appellee, against the appellant lodge, to recover upon a policy of insurance in the sum of $3000, which the declaration alleged the “appellant lodge made and delivered” to the appellee, insuring the life of one Kenneth McLennan in that amount for the benefit of appellee. Judgment was entered in the Superior Court in the sum named in the policy, which judgment was affirmed in the Appellate Court upon an appeal prosecuted by the lodge. The case comes into this court by a further appeal of the appellant lodge from the judgment of the Appellate Court.
In the Superior Court the appellant lodge interposed a demurrer questioning the sufficiency of the declaration, but afterwards applied to the court for leave to withdraw the demurrer. Such leave being given, appellant filed a plea of the general issue and a special plea. Appellee added the similiter to the plea of the general issue and demurred to the special' plea. Leave was granted the appellee to amend the declaration, and such amendment was made instanter, and an order entered that the pleas to the original declaration should stand to the declaration as amended, and that the appellant lodge should have leave to file a second special plea. Such additional or second special plea was filed and a demurrer presented against it. The court sustained the demurrer to the first and second special pleas, and the appellant lodge elected to abide by such pleas and applied for and was granted leave to withdraw its plea of the general issue. Damages in the sum of $3000 were assessed by a jury and judgment entered therefor.
The first assignment of error is that the declaration is insufficient in law, and that the Superior Court erred in not carrying the demurrers to the special pleas back to the first defective pleading,—the declaration. When the court decided the special pleas were obnoxious to the demurrers the plea- of the general issue was on file. When the general issue is on file challenging the allegations of fact set out in the declaration, a demurrer to a special plea cannot be carried back to the declaration. (6 Ency. of Pl. & Pr. p. 332, and numerous decisions of this court cited in note 3.) Having withdrawn the demurrer to the declaration and Sled a plea to the merits, the appellant must be regarded as having waived all objections to the declaration not going to the substance of the right of recovery.
The alleged insufficiency in the declaration is, that it omits allegations necessary to the full and complete statement of a cause of action. Conceding this criticism to be just, it is but that the declaration defectively states a cause of action. The objection to the declaration was not raised in the trial court. Had it been suggested.there it could have been readily obviated by amendment. It is a familiar rule that pleading to the merits, a trial and verdict cure such defects as are alleged to exist in the declaration.
It is not complained the court erred in sustaining the demurrer to the first special plea, but it is contended it was error to sustain the demurrer to the second special plea. This second special plea alleged that the policy in suit was issued in consideration of a written application therefor made by the said Kenneth McLennan, and that in and by said written application said McLennan agreed “to be governed by, and the said contract of insurance should be controlled by, all the laws, rules and regulations of the order governing said rank, now in force or that may hereafter be enacted by the Supreme Lodge Knights of Pythias of the World," and that the board of control of the said endowment rank, having full power to enact laws, rules and regulations for the government of the said rank, after the issuing of the said policy adopted a by-law which provided that if the death of any member of the rank, whether admitted to the rank before or after the passage of the by-law, should result from self-destruction, voluntary or involuntary, whether such member should be at the time sane or insane, the policy of insurance to such member should be forfeited. The plea further averred the death of the said assured resulted from self-destruction.
A number of grounds are urged in support of the demurrer to this plea, but it is only necessary we should advert to one of them, as in our opinion it presented a fatal objection to the sufficiency of the plea. The plea alleges the assured contracted to be bound by any by-law enacted by the Supreme Lodge Knights of Pythias of the World, and does not aver that the by-law relied upon to defeat the policy was enacted by the said supreme lodge. The averment in this respect is, “that the board of control of the endowment rank of the said supreme lodge adopted the by-law so relied upon.” It is alleged in the plea said board of control had full power to enact the by-law, but that allegation is merely a conclusion of the pleader as to a matter of law upon which no issue of fact could be raised. The assured was not bound by his contract to observe or be controlled by a by-law enacted by any law-making body other than the supreme lodge. Moreover, as matter of law, the Supreme Lodge Knights of Pythias of the World could not delegate to the board of control the law-making power which it possessed.
We quote with approval the observations of the Supreme Court of Tennessee in the case of this appellant lodge against LaMalta and others, (31 S. W. Rep. 493,) upon this point, as follows: “It (the supreme lodge) could not abdicate its high position and transfer its lawmaking power to such board or other agency. Though the supreme lodge may have had full power, under its charter, to pass the law in question in this case, (and we think it had,) we have no hesitation in holding that it could not bestow such power upon the board of control, so that it is earnestly insisted and contended in this, case, that even if the supreme lodge may have had the right and power to pass such a by-law or amendment, that it could not delegate its authority to a board of control, and that the appellee in this case is not bound by an amendment passed by such board of control. The contract is with the supreme lodge—mot with the board of control.”
The judgment of the Appellate Court must be and is affirmed.
Judgment affirmed.