Knapp v. Order of Pendo

• Decision Date: 18 January 1905
• Citation: 79 P. 209,36 Wash. 601
• Court: Washington Supreme Court
• Parties: KNAPP v. ORDER OF PENDO.

79 P. 209

36 Wash. 601

KNAPP v. ORDER OF PENDO.

Supreme Court of Washington

January 18, 1905

Appeal from Superior Court, Lewis County; A. E. Rice, Judge.

Action by Jennie M. Knapp against the Order of Pendo, a mutual benefit association, on a certificate of membership. From a judgment for plaintiff, defendant appeals. Affirmed.

Reynolds & Stewart, for appellant.

Govnor Teats and J. R. Buxton, for respondent.

RUDKIN J.

On the 17th day of April, 1902, the defendant, a mutual benefit association, organized and existing under the laws of the state of California, with branches, known as 'lodges' or 'councils,' in the state of Washington, issued and delivered to David Knapp, since deceased, a certificate of membership in the relief fund of said order, payable to plaintiff herein, as widow of said deceased conditioned, among other things, for the payment of a funeral benefit of $75 and a further monthly pension of $20 per month for a period of 10 years in the event of the death of said member.

Said certificate was issued upon the express condition that the statements made by the applicant in his application for such certificate of membership were true. The constitution and by-laws of the order, which were made a part of the certificate, further provide 'that, in the event of the death of any member by suicide during the first year of membership, his or her beneficiary shall not be entitled to recover any benefits whatever.' The complaint was the usual form in such cases. The answer, in addition to the denials, alleged affirmatively that the deceased in his application for membership stated that he had never been addicted to the excessive use of malt or alcoholic stimulants, which statement was false and untrue; and second, that the deceased came to his death within one year from the issuance of the certificate, and that his death was caused by his own voluntary, willful, and unlawful act. The reply denied the affirmative parts of the answer, and alleged that, if the death of the said Knapp was caused by his own act, such act was not voluntary or willful, but was the result of insanity and mental derangement. A verdict was rendered for plaintiff on the trial, and from the judgment entered thereon this appeal is taken. We will now briefly consider the numerous errors assigned.

1. That the court erred in awarding the plaintiff a jury trial, for the reason that a demand therefor was not made and the jury fee paid at the time the case was called to be set for trial as required by the act of March 6, 1903 (Laws 1903, p. 50, c. 43). It is within the discretion of the trial court to permit a demand for a jury to be made after the case is called to be set for trial, or to submit the issues of fact in a case to a jury of its own motion, and no error can be predicated upon its ruling in that regard.

2. That the court erred in allowing the filing of a supplemental complaint. The action was not brought on for trial for about a year after its commencement. The court allowed a supplemental complaint to be filed, including the monthly installments which accrued after the commencement of the original action. The right to recover these installments followed the right of recovery in the main action as a matter of course, and the filing of the supplemental complaint was properly allowed.

3. That the court erred in refusing to strike the complaint and dismiss the action for the refusal of plaintiff to answer certain interrogatories propounded to her. The plaintiff objected to interrogatory No. 9, for the reason that the same was immaterial and irrelevant. As soon as this objection was disposed of by the court, the interrogatory was answered. This was a sufficient compliance with the statute. Interrogatory No. 11 was answered, and, if the answer was not sufficiently full and explicit, the remedy was by motion to require a more specific answer, and not by motion to dismiss. The motion to dismiss was properly overruled.

4. The fourth and fifth assignments relate to the refusal of the court to grant the motion for a nonsuit when first interposed, and in reopening the case to admit further proof on the part of the plaintiff. This is a common practice, and was clearly within the discretion of the trial court.

5. That the court erred in admitting in evidence a copy of a written demand for blanks upon which to submit proof of death. In support of this...