Colt v. Hicks
| Decision Date | 13 January 1932 |
| Docket Number | No. 14007.,14007. |
| Citation | 97 Ind.App. 177,179 N.E. 335 |
| Parties | COLT et al. v. HICKS. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Vanderburgh Circuit Court; Chas. P. Bock, Judge.
Action by Lillian N. Hicks against John Colt and others. From judgment for plaintiff, defendants appeal.
Affirmed.French Clements and Charles M. La Follette, both of Evansville, and Louis B. Ewbank, of Indianapolis, for appellants.
E. J. Crenshaw and W. K. Denton, both of Evansville, for appellee.
Appellee brought this action as surviving widow and beneficiary of Lawrence Hicks, a member of the International Union of Steam Operating Engineers, against the appellants as members and representatives of said union, for death benefits alleged to be due her from said union because of the death of her husband. The cause was submitted to a jury for trial, which resulted in a verdict and judgment for appellee.
Appellee's complaint was in one paragraph alleging, in substance: that the International Union of Steam Operating Engineers was an unincorporated association engaged in the business of insuring the lives of its members. That on July 1, 1925, there was in force sections 2 and 9 of article 22 of the constitution, general laws, and rules of said association, which were set out in full in the complaint. Section 2 provided that six months after the increase in per capita tax went into effect death benefits should be paid to beneficiaries of members in continuous good standing under the provisions of said section as follows, and not otherwise: Section 9, provided that the beneficiaries should be paid according to a table therein set out, unless otherwise specified by insured members, and, first, if there was a widow and child or children surviving, the widow should receive all the benefit. That on February 23, 1915, her husband became a member of said association, paid the required admission fee, and thereafter performed all the conditions precedent to be performed until March 7, 1929, when he died. That the appellee performed all conditions precedent to be performed on her part. That said per capita tax went into effect July 1, 1925. That Lawrence Hicks left surviving him the appellee and children. That in the month of March, 1929, the association denied all liability on the contract of insurance. That there were thousands of members of said association residing in every state in the United States and foreign countries. That it would be impracticable and impossible to join all of them as parties to this action. That the appellants were members of the association, and were made defendants to represent and act for all members of the association. Appellants filed a demurrer to this complaint, which was overruled.
To the complaint the appellants filed an answer in five paragraphs. The first paragraph of answer was a general denial; the second, third, fourth, and fifth paragraphs set out, in different particulars, how and in what manner the decedent had failed to comply with article 22 of the Constitution, general laws, and regulations of the union and had therefore forfeited his right to death benefits, making this article an exhibit to the answers; the fifth paragraph, also alleged decedent's failure to comply with articles 13 and 16 of the constitution, general laws, and rules of said union, which were made a part of this paragraph of answer, thereby forfeiting his rights as a member. These by-laws, or the substance thereof, so far as necessary, will be hereafter set out.
To these special paragraphs of answer the appellee filed a reply in two paragraphs. The first was a general denial. The second set out section 1 of article 16 relating to the payment of membership dues, and section 4 of article 13 relating to the payment of per capita tax by the local to the international union, contained in the constitution, general laws, and rules of the organization; and alleging further that, with the knowledge and acquiescence of the international union, the local union of which decedent was a member, had followed a certain custom in the payment of dues and reporting of members in good standing to the international union, which custom and practice was relied upon by decedent, and that therefore appellants had waived any right that they might have to forfeit his membership in said union or the claim of his beneficiaries to death benefits.
To this second paragraph of reply appellants demurred upon the ground that it was a departure from appellee's original cause of action. This demurrer was overruled.
Appellants have appealed to this court, assigning as errors (1) that the court erred in overruling appellants' demurrer to appellee's complaint; (2) that the court erred in overruling appellants' demurrer to appellee's second paragraph of reply; (3) that the court erred in overruling appellants' motion for a new trial.
[1] Appellants alleged as their first ground of demurrer that the court had no jurisdiction over their person. In the title of the complaint they were designated as members of the International Union of Steam Operating Engineers, and in the complaint it was alleged that this union was an unincorporated association engaged in the business of insuring lives of its members; also that there were thousands of members of said association residing in every state in the United States and in foreign countries, that it would be impracticable and impossible to join all of the members as parties defendant to the action, and that the defendants as members of said association were made defendants to the action to represent and defend for all members thereof. The record shows that the defendants made a full appearance to the action. The want of jurisdiction of the court over the person of the defendants does not appear in the complaint, so there was no error in overruling appellants' demurrer on this ground. 1 Watson's Works Practice, §§ 121, 502.
[2] As a second ground of demurrer, appellants say that there is a defect of parties defendant, in this, that the complaint shows that the defendants are sued as members of an unincorporated association; that said association is composed of members, local unions, local joint executive boards, and state branches; that the state branch in the state of Indiana, the local union, and the local joint executive boards within the state of Indiana, and none of them, had been served with process. This demurrer was insufficient in form to present any question pertaining to a defect of parties defendant to the trial court for its consideration. A demurrer for defect of parties must point out specifically defects complained of, giving the name or names of parties who should be joined, stating whether as plaintiffs or defendants. “This is because the demurrer for such cause performs the same office that a plea in abatement performs when the defect of parties does not appear upon the face of the complaint.” Boseker v. Chamberlain (1903) 160 Ind. 114, 66 N. E. 448, 449; 1 Watson's Works Practice, §§ 275 and 574, and authorities there cited. The court did not err in overruling the demurerr on this ground.
[3] As their third ground of demurrer, appellants say that the complaint does not state facts sufficient to constitute a cause of action, in support of which appellants filed three separate paragraphs of memoranda. Any errors dependent upon the first two paragraphs of memoranda are waived by failure of counsel for appellants to discuss them in their brief. The third paragraph of memoranda to this ground of demurrer is, that This memorandum is based upon and requires a consideration of sections 1, 2, and 5 of article 22 of the constitution, general laws, and rules of the union. Sections 1 and 2 are as follows:
It is very apparent that these sections were adopted for the purpose of establishing a death benefit fund, classes among the members of the union to whom payable, and the amount payable to each class. Counsel for appellant insist that these sections of the by-laws must be construed prospectively and not retrospectively, that under that rule no death benefits were payable until six months had elapsed from July 1, 1925,...
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