Smith v. The Supreme Lodge of The Order of Select Friends

• Decision Date: 09 June 1900
• Docket Number: 11,636
• Citation: 62 Kan. 75,61 P. 416
• Parties: IRVIN SMITH v. THE SUPREME LODGE OF THE ORDER OF SELECT FRIENDS
• Court: Kansas Supreme Court

61 P. 416

62 Kan. 75

IRVIN SMITH v. THE SUPREME LODGE OF THE ORDER OF SELECT FRIENDS

No. 11,636

Supreme Court of Kansas

June 9, 1900

Decided July, 1900.

Error from Labette district court; A. H. SKIDMORE, judge.

Judgment affirmed.

W. D Atkinson, for plaintiff in error.

Boyle & Dillard, for defendant in error.

OPINION

JOHNSTON, J.:

Irvin Smith brought an action against the supreme lodge of the Order of Select Friends, a fraternal insurance organization to recover $ 3000 on an insurance contract. The order had issued to him a certificate which entitled him to a benefit from the relief fund, not exceeding $ 3000, in case of disability or death, in such manner as the constitution and general laws of the order governing the relief fund provided. The constitution and general laws provide for the payment of a benefit for disability whenever a member, by reason of disease, accident, or otherwise, while engaged in the performance of any reputable or legitimate business or recreation, becomes totally and permanently disabled from following his usual or regular business, occupation, or profession. One section of the general law provides:

"The following, among other things, are hereby declared to be total and permanent disabilities within the meaning of the laws of this order: The loss of both eyes, the loss of one hand and permanent crippling of the other; the loss of one foot and permanent crippling of the other leg or foot."

The plaintiff was a pharmacist engaged in running a drug-store in the city of Parsons, and on December 4, 1897, he suffered an accidental gunshot wound in the left arm, and it became necessary to amputate the arm at the shoulder-joint. The right hand was not injured, nor was any other injury sustained, but the plaintiff alleged and claimed that the loss of the left hand constituted a permanent and total disability within the terms of the contract, and claimed a recovery for $ 3000. Upon a demurrer to the petition, the court held that the loss of the left arm alone did not constitute a permanent and total disability, within the terms and meaning of the contract between the order and the member and of this ruling complaint is made.

The ruling and judgment of the court must be sustained. The petition set forth the nature and extent of the plaintiff's injury in detail, and then averred that it constituted a total and permanent disability, but the last averment is no more than a conclusion. The sufficiency of the petition is to be determined from the facts stated therein and those of which the court must take notice. The occupation of the plaintiff, namely, pharmacist, or druggist, is well understood, and of the requirements of the business the...