Security Ben. Ass'n v. Henning

• Decision Date: 07 January 1924
• Docket Number: 10553.
• Citation: 222 P. 396,74 Colo. 394
• Parties: SECURITY BEN. ASS'N v. HENNING.
• Court: Colorado Supreme Court

222 P. 396

74 Colo. 394

SECURITY BEN. ASS'N v. HENNING.

No. 10553.

Supreme Court of Colorado

January 7, 1924

Department 3.

Error to District Court, City and County of Denver; Neil F. Graham Judge.

Action by Anna Henning against the Security Benefit Association successor to the Knights and Ladies of Security, a fraternal benefit society. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

William H. Wadley, of Denver, for plaintiff in error.

Edwin N. Burdick and Clarence O. Moore, both of Denver, for defendant in error.

CAMPBELL J.

The defendant, a fraternal benefit society, issued to Fritz Henning on his application therefor, its beneficiary certificate or policy of insurance in the sum of $1,000, payable to his wife at his death. This action is by the beneficiary, who, in her complaint, alleges the death of the applicant and other matters showing a right of recovery. She had judgment below and the defendant is here asking a reversal.

We shall not discuss all of the errors assigned, because they are not fully presented by the printed abstract of record, but prejudicial errors, clearly appearing from the abstract, of themselves require a reversal, and we withhold opinion upon such other assignments, as the facts may not be the same on another trial. It is not inappropriate to observe that possibly some record obscurities, and, at least, some of the erroneous rulings made by the judge who presided at the trial, are due to the fact that one judge settled the pleadings, and another judge, who conducted the trial on the merits, following the usual practice in this district, accepted these former rulings as controlling and made his rulings conform thereto.

1. It is not error of the court to strike from the defendant's answer the seventh paragraph. It alleged, in general terms, that the constitution and laws of the association contained various provisions, without stating what they were, that established, limited, and governed the relations, to the parent society and its members, of the respective subordinate councils of the order, and its officers and members, and defined and limited the liability of the defendant in respect of anything done by any subordinate council or its respective officers or members. Just what these allegations mean it is not easy, if not impossible, to say, but if the object was to show a breach or violation by applicant of any provision applicable to him, there was a failure to allege it. Besides, the defendant could not have been prejudiced by the striking of these indefinite and ambiguous allegations, because in other parts of the answer the real defenses to the action were more aptly pleaded.

2. The trial court committed prejudicial error in striking from the answer paragraph 9, reading:

'9. Alleges that at the time of his said application, the said Fritz Henning was and for some years thereafter was, unknown to this defendant and its predecessor, a bar tender and engaged in one or more of the prohibited occupations set forth in the law heretofore recited and indorsed upon the application for said benefit certificate, by reason whereof all rights and benefits arising to the said Fritz Henning and his beneficiary became and are forfeited and annulled; that such nature of the occupation of said Henning was unknown to defendant and its predecessor until disclosed by its investigations made in connection with the pending suit; and that upon such disclosure being made the defendant immediately returned to said plaintiff the dues or premiums forwarded by the local officer of the subordinate council received subsequent to such disclosure and directed that no further dues or premiums on account of said policy should be accepted.'

Section 107 of the laws of the society, set forth in the answer and not denied, prohibits a member or certificate holder from engaging in the occupation of a saloon keeper or bartender--that is, keeping a saloon or tending bar is in the prohibited class of risks--and no subordinate council could receive into or retain in its beneficiary or social membership persons engaged therein. This section also expressly declared that if any certificate holder was, at the time of the application, or thereafter became, engaged in any such business, his certificate ipso facto was canceled and annulled and all rights thereunder forfeited. The association had the right to determine to what persons it should, and to what persons it should not, issue certificates. It had the right to designate prohibited risks, and to forfeit the rights of all members who engaged in the prohibited occupations. If the applicant was, as paragraph 9 alleges, engaged in the prohibited occupation at the time of his application, he certainly must have known it, and his answer to one of the questions propounded, that he was not engaged in such occupation, must have been willfully and deliberately false, and it voided the contract at its very inception.

Plaintiff's counsel, conceding, for the sake of argument, that when Henning made his application for membership, he was, or thereafter became, engaged in a prohibited...