Grand Lodge of Brotherhood of Railroad Trainmen v. Clark
| Decision Date | 12 May 1920 |
| Docket Number | 23,331 |
| Citation | 127 N.E. 280,189 Ind. 373 |
| Parties | Grand Lodge of the Brotherhood of Railroad Trainmen v. Clark |
| Court | Indiana Supreme Court |
From the Marion Superior Court (99,537); Vincent G. Clifford Judge.
Action by Frank S. Clark against the Grand Lodge of the Brotherhood of Railroad Trainmen. From a judgment for the plaintiff, the defendant appeals.
Affirmed.
M. L Clawson, for appellant.
Bailey & Young, for appellee.
This was a suit brought by appellee against appellant to recover upon a beneficiary certificate or policy of insurance issued by appellant to the decedent and the insured, who was a brother of the appellee, in which suit the appellee recovered a judgment against the appellant in the sum of $ 1,650, from which judgment appellant appeals, and alleges that the court erred in overruling appellant's demurrer to appellee's amended complaint, and that the court erred in sustaining the demurrer of appellee to appellant's amended second paragraph of answer to the amended complaint.
The complaint alleges that the defendant, appellant, is a fraternal benefit association doing business under the laws of Ohio; that the policy was in the sum of $ 1,500, and was payable to the appellee, Frank Sylvester Clark, upon the death of the insured, George Clark, pursuant to the application by assured. A copy of the application is filed with the complaint and made a part thereof, marked exhibit A. A copy of the policy is also filed and made a part of the complaint, and marked exhibit B. The complaint alleges that the premiums were paid, and that the insured and decedent had done all that was required of them under the terms of the contract of insurance; that the insured, George Clark, died on June 23, 1913; that all assessments and obligations on the part of the assured had been paid and satisfied before his death. It further alleges that proof of death was made to the lodge of which deceased was a member; that the appellant, defendant in the suit below, refused to pay, and plaintiff alleges that on account of the unnecessary delay in the payment of said policy there is interest due on same from the date of decedent's death, amounting in all, principal and interest, to $ 1,650.
Defendant filed a demurrer to the complaint, and the demurrer, omitting the caption and signature, is as follows: The complaint was good as against the objections urged, and no error was committed by the court by overruling it. § 344 Burns 1914, Acts 1911 p. 415; Conrad v. Hausen (1908), 171 Ind. 43, 85 N.E. 710, and cases there cited; State v. Katzman (1903), 161 Ind. 504, 69 N.E. 157; Oglebay v. Tippecanoe Loan, etc., Co. (1908), 41 Ind.App. 481, 82 N.E. 494.
Appellant filed an answer in two paragraphs. The first paragraph was a general denial. The second paragraph referred to as the second amended paragraph alleged fraudulent misrepresentations by decedent to procure the issuance of the policy sued on, and alleges that the applicant falsely stated that for five years prior to January 9, 1913, the general condition of his health was good.
After alleging that decedent knew of the condition of his health, and that it was bad, and that he had been an inmate of various sanitariums, and had been treated by a physician for myalgia and rheumatism within the last five years preceding his application, said defendant goes on to state that the policy was issued under the laws of the State of Ohio, and that the construction and interpretation of the laws of the State of Ohio were to the effect that said beneficiary certificate issued to plaintiff was null and void by reason of said false and fraudulent representations in the application made by decedent, and a refund of premiums by defendant was unnecessary, but that on March 11, 1916, the said defendant paid to the clerk of the court for the use and benefit of the plaintiff the sum of $ 23.50, being in full of all premiums, dues, fines and assessments paid by decedent to the defendant, with interest at six per cent. from the time of payment; that on September 28, 1914, defendant had knowledge that decedent had made said fraudulent misrepresentations in said application; that said decedent at the time of his death was in good standing with defendant organization, and had paid all fines, dues, and assessments and premiums required by said defendant under and by the terms of his application and certificate, and was not in arrears in any way, and that said decedent died on June 23, 1913. Appellant also alleges in said paragraph of answer that the decedent made certain misrepresentations as to his qualifications for membership in the appellant association, but does not allege any facts showing injury to appellant by reason of such misrepresentations.
To said paragraph of answer plaintiff demurred for the reason that said paragraph does not state facts sufficient to constitute a cause of defense. This demurrer was sustained. The defendant excepted, and withdrew his first paragraph of answer, which was a general denial, and refused to plead further. The court then rendered judgment in favor of plaintiff in the sum of $ 1,650, together with the costs of action.
It will be observed in this case that the appellant does not state whether or not the laws of Ohio upon which he relies were statutory. He does not state what the laws are, but he states what, in his opinion, is the effect of those laws. It is not sufficient in a pleading to state the effect of the laws of a sister state, but such laws must be pleaded as facts are pleaded, and must state what the laws are, and not what the effect of them may be. The amended second paragraph of answer is insufficient as pleading the laws of the State of Ohio. To plead a foreign law, either in complaint or answer, the law must be set out specifically and definitely so that the court can construe the law as applicable to the facts pleaded in such complaint or answer. If such law is statutory, that part of the...
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