Crnic v. Croatian Fraternal Union of America
| Decision Date | 06 November 1933 |
| Citation | 66 S.W.2d 161,228 Mo.App. 251 |
| Parties | JOSIP CRNIC, RESPONDENT, v. CROATIAN FRATERNAL UNION OF AMERICA, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Adair County.--Hon. Paul Higbee, Judge.
AFFIRMED.
Judgment affirmed.
Ed Jayne and Rieger & Rieger for respondent.
Murrell & Murrell for appellant.
This is an action brought at the December term, 1931, of the Circuit Court of Adair County, Missouri, to recover for alleged disability benefits.
The defendant, appellant herein, is a fraternal benefit society organized under and by virtue of the laws of Pennsylvania but licensed to insure members of the society who are residents of Missouri.
It is admitted that the plaintiff was a resident member in the State of Missouri.
It is admitted that on the 10th day of July, 1916, that the respondent, which for uniformity we hereinafter designate as the plaintiff, made an application and became a member of the Croatian League of Illinois that was thereafter taken over by the National Croatian Society which took over the assets and obligations of the Croatian League of Illinois and that the plaintiff was then a member of the National Croatian Society the appellant herein. For uniformity we hereinafter refer to said appellant as defendant.
It is contended by the plaintiff that he, prior to July 30, 1929 became ill, diseased and sick with chronic bronchitis intestinal toxaemia, bronchial asthma, myopia and suffered a hernia.
Plaintiff contends that by reason of the above condition he was totally disabled from the above date and that the disability continues.
The plaintiff bases his cause of action on his membership and alleges that he conformed in all respect with the laws of the society and that under the terms of the by-laws, rules and regulations of the defendant society, he is entitled to an unpaid balance due him of $ 10 per week from and after December 15, 1930, to December 15, 1931, amounting to $ 520.
Defendant by answer pleads provisions of the by-laws of the society and denies liability on grounds of the alleged failure of plaintiff to comply with the provisions, compliance it is claimed, being a prerequisite to the right to recover. Defendant further answers by denying each and every allegation of plaintiff's petition not specifically admitted.
The plaintiff by way of reply pleads a former suit, wherein the plaintiff herein was plaintiff and the defendant herein was defendant and where it is alleged that there was a judgment had in favor of plaintiff and against defendant under date of May 19, 1931, and it is further alleged in said reply that said suit was for unpaid disability benefits accruing up to December 15, 1930, and that said suit and recovery thereunder were for disabilities in issue in this case involved. In other words, it is alleged that the present suit is for continuing benefits that have accrued since May 19, 1931, under the same contract and for the same disabilities, as were in that case in issue. It is plead in that case that the court had jurisdiction of the parties and the subject-matter. Plaintiff in his reply pleads the former adjudication of all matters, except such matters as plaintiff has admitted, as in bar of any defense to the cause of action stated in plaintiff's present petition.
The plea in bar is contained in the second paragraph of the plaintiff's reply. The defendant before trial filed a written motion to strike out said paragraph. The court overruled the motion.
Under the pleadings thus made, a jury was waived and trial was by the court.
The plaintiff's evidence and defendant's admissions of record supports the contentions made by plaintiff, unless his rights be barred by the provisions of the by-laws of the defendant society, which were plead and offered in evidence by the defendant.
At the conclusion of the evidence, the defendant offered five (5) declarations of law. The court gave the fourth (IV), which is as follows:
"The court declares that plaintiff is not entitled to recover any liability or sick benefits as alleged in his petition for any disability or sickness resulting from hernia." (Given.)
The court refused the first, second, third and fifth declarations of law offered by defendant to which the defendant duly excepted and accepted. However, defendant under "Assignment of Error" in its brief appears to have abandoned as to claimed error of refusal of the third and fifth declarations.
The first and second declaration read as follows:
Under the pleadings, evidence and declarations of law as outlined above, the court found issues for plaintiff and entered judgment against defendant in the sum of $ 520 from which the defendant appealed to this court.
OPINION.We deem it unnecessary to discuss the evidence and issues involved in the suit, further than as to what is germane to the issues presented in the appellant's "Assignment of Error" as set forth in appellant's statement, brief and argument which is as follows:
The defendant's first assignment of error is directed to the failure of the court to strike out the second paragraph of defendant's reply. The paragraph reads as follows:
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Boillot v. Income Guaranty Co.
...It was said by this court in an opinion written by Judge SHAIN in Crnic v. Croatian Fraternal Union of America, supra, l. c. 163, of 66 S.W.2d 161: "It has been held by the courts of this state that judgments are conclusive in subsequent actions between the same parties on the same cause of......
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Demba v. Demba, 51055
...to prove in the former action, such former judgment of course is not conclusive. (emphasis added). Crnic v. Croatian Fraternal Union of America, 228 Mo.App. 251, 66 S.W.2d 161, 163 (1933). Since the Findings of Fact contained in paragraphs 17, 18 and 19 were unnecessary to the determination......