MacKie v. The Grand Lodge of The Ancient Order of United Workmen of Kansas

• Citation: 164 P. 263,100 Kan. 345
• Decision Date: 07 April 1917
• Docket Number: 20,791
• Parties: ANNIE MACKIE et al. (FRANK J. MACKIE and MAY LEWIS, Appellants), v. THE GRAND LODGE OF THE ANCIENT ORDER OF UNITED WORKMEN OF KANSAS, Appellee
• Court: United States State Supreme Court of Kansas

164 P. 263

100 Kan. 345

ANNIE MACKIE et al. (FRANK J. MACKIE and MAY LEWIS, Appellants), v. THE GRAND LODGE OF THE ANCIENT ORDER OF UNITED WORKMEN OF KANSAS, Appellee

No. 20,791

Supreme Court of Kansas

April 7, 1917

Decided January, 1917.

Appeal from Lyon district court; SAMUEL S. SPENCER, judge pro tem.

Judgment reversed and new trial ordered.

SYLLABUS

SYLLABUS BY THE COURT.

FRATERNAL INSURANCE -- Presumptions of Death -- Evidence -- Prima Facie Case. Where a demurrer to evidence is sustained, error in excluding material and competent evidence will compel a reversal of the judgment if the evidence excluded, together with that admitted, is sufficient to make a prima facie case as against the demurrer.

Dennis Madden, of Emporia, for the appellants.

Edgar Bennett, of Washington, for the appellee.

OPINION

MARSHALL, J.:

In this case the plaintiffs seek to recover on a beneficiary certificate issued by the defendant to William Mackie.

The petition alleged that William Mackie was a member of the defendant order; that the order had issued to him a beneficiary certificate payable at his death to the plaintiffs as beneficiaries; that on the 23d day of August, 1904, William Mackie disappeared from his home and family and since that time has been unheard of, and his whereabouts have been unknown, although diligent search and inquiry have been made by the plaintiffs and the defendant; that William Mackie died on or about the 23d day of August, 1911; that proof of his death was made to the defendant and payment of the certificate refused; that the dues and assessments on the certificate were paid by the plaintiff to the day of , 1905; that the defendant then refused to accept any further payments from the plaintiffs; and that the plaintiffs have been ready and willing to pay all dues and assessments.

Judgment was rendered in favor of the defendants on a demurrer to the plaintiff's evidence. From this judgment the plaintiffs, Frank J. Mackie and May Lewis, appeal. The cause was tried on October 13, 1913, before S. S. Spencer, judge pro tem. The plaintiff's evidence tended to show the following facts: That William Mackie was a member of the defendant organization, and that a beneficiary certificate had been issued to him payable to the plaintiffs; that William Mackie disappeared from his home on August 23, 1904; that thereafter the dues and assessments were paid by the plaintiffs until July, 1905, and by the local lodge until August, 1905; that an arrangement was then made with the officers of the local lodge by which it would pay the dues and assessments until sometime later; that an assessment became due on September 28, 1905, but that, prior to that time, and after the arrangement with the officers of the local lodge had been made, the grand master of the defendant wrote the officers of the local lodge telling them not to accept any more dues or assessments on this certificate from any one except William Mackie or some one authorized by him to pay them; and that, thereafter, the officers of the local lodge refused to receive any further dues or assessments, although payment thereof was tendered.

A further trial of the cause was then postponed. It was resumed on the 2d day of Nevember, 1915, when the plaintiffs requested leave to file an amended petition. This leave was refused on the following grounds, as stated by the trial court:

"The trial of this cause began October 10,...