Messick v. National Council of Knights and Ladies of Sec.

• Decision Date: 13 July 1918
• Docket Number: 14129.
• Citation: 173 P. 940,103 Wash. 143
• Parties: MESSICK v. NATIONAL COUNCIL OF KNIGHTS AND LADIES OF SECURITY.
• Court: Washington Supreme Court

173 P. 940

103 Wash. 143

MESSICK v. NATIONAL COUNCIL OF KNIGHTS AND LADIES OF SECURITY.

No. 14129.

Supreme Court of Washington, En Banc.

July 13, 1918

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by Mildred M. Messick against the National Council of the Knights and Ladies of Security. From judgment for plaintiff defendant appeals. Affirmed.

Thos. H. Bain, of Seattle, for appellant.

J Speed Smith and Henry Elliott, Jr., both of Seattle, for respondent.

FULLERTON J.

The appellant, a fraternal benefit society, issued a benefit certificate to one Jay T. Messick for $1,000, payable upon his death to his daughter, the respondent. After the death of Messick the appellant declined to pay upon the certificate and this action was brought to recover thereon. On appearing in response to the complaint, the appellant demanded a bill of particulars, which was granted in part and refused in part. The appellant then filed a general demurrer to the complaint, which the trial court overruled. It then answered putting in issue by denials certain of the traversable allegations of the complaint and setting up affirmative matter. To the answer the respondent replied by denials and by affirmative matter in avoidance. The appellant moved that the reply be made more definite and certain, which motion the trial court overruled. The cause was then tried by the court sitting with a jury, and verdict returned for the respondent. This appeal is from a judgment entered on the verdict.

On taking the appeal the appellant sought to bring up with the record a statement of facts. Prior to the hearing in this court on the merits, this statement was stricken on the motion of the respondent. Subsequent thereto the appellant was permitted to review the order striking the statement by a motion to reinstate it, which upon a hearing was denied by the court. The appellant again asks that the question be reviewed, but we find nothing new presented justifying such a course. The statement was stricken for want of proper notice to the respondent of an application for an extension of time in which to file the statement in the trial court, and to grant the application now made would not only be to review a question twice decided, but would be to deny to the respondent rights guaranteed him by the statute. The statement of facts being stricken, the questions open for consideration relate wholly to the rulings of the court upon the demurrer and the preliminary motions of the appellant.

The first of the preliminary proceedings of which complaint is made is the refusal of the court to require the respondent to furnish a bill of particulars to the extent demanded by the appellant. The demand was for a copy of the certificate upon which the action was based, a copy of the by-laws of the appellant society, and a copy of the proofs of death. The court required a copy of the certificate to be furnished, but denied the motion as to the by-laws and the proofs of death. In this there was no error. A party is not required to furnish by a bill of particulars facts already in the possession of his adversary, nor is he required to furnish by that means copies of instruments as accessible to his adversary as they are to him. Certainly the appellant had possession and access to its own by-laws, and the proofs of death were in its possession, as these had to be furnished as a prerequisite to the respondent's cause of action.

In her complaint the respondent set forth the issuance of the benefit certificate to her father, that it remained in full force and effect until his death, that she was named as the beneficiary therein, that in due time and in accordance with the terms of the certificate she had submitted proofs and made demand for the...