Supreme Forest of The Woodmen Circle v. Stretton

• Citation: 68 Kan. 403,75 P. 472
• Decision Date: 06 February 1904
• Docket Number: 13,337
• Parties: SUPREME FOREST OF THE WOODMEN CIRCLE v. JOHN H. STRETTON
• Court: Kansas Supreme Court

75 P. 472

68 Kan. 403

SUPREME FOREST OF THE WOODMEN CIRCLE v. JOHN H. STRETTON

No. 13,337

Supreme Court of Kansas

February 6, 1904

Decided January, 1904.

Error from. Wyandotte district court; E. L. FISCHER, judge.

The judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, DISTRICT COURT--Demurrer to Evidence--Defendant Estopped. If, after a demurrer to plaintiff's evidence has been overruled, the defendant enter upon a trial of the very matters which he claims the plaintiff failed to prove, introduce evidence respecting them which the plaintiff rebuts with further evidence, and take the verdict of the jury upon them, the status of the proof at the close of the plaintiff's case is rendered immaterial.

2. FRATERAL INSURANCE--Misconduct of Assistant Clerk--Lodge Estopped. The by-laws of a fraternal beneficiary society provided that subordinate lodges, so desiring, might have an assistant clerk. For some two months, both in the presence and absence of its clerk, a member of a subordinate lodge habitually received and receipted for dues and beneficiary assessments in the name of the clerk, in regular meetings of the lodge, with its knowledge and acquiescence. During a period of almost a month, in the absence of the clerk, she performed the latter's duties in taking down and recording the minutes of meetings, collecting assessments and dues, entering payments made by members on the books of the lodge, and making reports to the supreme clerk, all with the knowledge and acquiescence of the lodge. She assisted a new clerk, who subsequently took office, in making up her report and in performing other duties. Held, that such conduct was sufficient to constitute such person an assistant clerk, so that payments of dues and assessments to her by a member would bind the order, whether such payments finally reached the supreme body or not.

3. JURY AND JURORS-Immaterial Misconduct. The misconduct of a juror which does not affect the verdict is not ground for a new trial.

Brown Harding & Brown, and Moore & Berger, for plaintiff in error.

McAnany & Alden, for defendant in error.

BURCH J. All the justices concurring.

OPINION

BURCH, J.:

The defendant below was a fraternal beneficiary society. During the lifetime of Mary Stretton, and while she was a member in good standing of one of the defendant's subordinate branches or lodges, it issued to her a beneficiary certificate payable at her death to the plaintiff, her husband. After her decease the plaintiff brought an action for the enforcement of the certificate. The petition alleged in general terms, together with other appropriate facts, that all conditions and requirements of the certificate and of the by-laws of the society had been complied with. The answer denied this allegation, and asserted that the decedent was not at the time of her death a member in good standing, and pleaded a forfeiture. On the trial the plaintiff proved the death of the former member, introduced his certificate, and rested. A demurrer to the evidence was interposed and overruled, and the defendant then undertook to make proof of the facts relied upon for a forfeiture. The plaintiff endeavored to meet this proof by rebutting evidence. The jury made special findings of fact upon certain questions submitted to them, and returned a general verdict for the plaintiff, upon which judgment was entered. A motion for a new trial having been overruled, the defendant prosecutes error in this court.

It is insisted that, under the provisions of the certificate and of certain by-laws of the society, the plaintiff was required to prove the good standing of the deceased in the society at the time of her death as a condition precedent to recovery; that no presumption from the issuance of the certificate could supply such proof, and hence that the demurrer to the evidence should have been sustained. Under the language of the instruments mentioned it is doubtful if this be true. They seem to require the performance of certain stated things as conditions precedent to the vitality of the certificate and the delivery of the certificate itself appears to be evidence of a compliance with such conditions; but the matter can now be of no practical importance whatever, since, after the demurrer to the evidence was overruled, the defendant immediately entered upon a trial of the very facts which it claimed the plaintiff had failed to prove; and having brought on a trial of the omitted facts instead of standing upon the demurrer, and having taken the verdict of the jury upon them, the status of the proof at the close of the plaintiff's case in chief is now immaterial.

On the trial it appeared that if a payment made April 3, 1900 related to the dues and assessments of that month the deceased was in good standing; but that if it was made for the month next preceding, all rights under the beneficiary certificate were forfeited. The evidence upon this question and the...