Supreme Tent Knights of Maccabees of the World v. Volkert

• Decision Date: 27 April 1900
• Citation: 25 Ind.App. 627,57 N.E. 203
• Parties: SUPREME TENT KNIGHTS OF MACCABEES OF THE WORLD v. VOLKERT.
• Court: Indiana Appellate Court

25 Ind.App. 627

57 N.E. 203

SUPREME TENT KNIGHTS OF MACCABEES OF THE WORLD

v.VOLKERT.¹

Appellate Court of Indiana.

April 27, 1900.

Appeal from circuit court, Marion county; Henry Clay Allen, Judge.

Action by Sarah Volkert against the Supreme Tent of the Knights of Maccabees of the World. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Miller & Elam, for appellant. Finch & Finch and Guilford A. Deitch, for appellee.

WILEY, C. J.

On October 24, 1893, appellee's husband made application for membership in appellant order, and was issued a certificate of membership. By the terms of this certificate, appellee was to receive a benefit of not to exceed $1,000 upon the death of her husband. The certificate, among other things, provided that the board of directors might suspend a member from all benefits “who, after admission, engaged in occupations prohibited by the laws of the order; and the action of such board in such cases shall be final.” Section 142 of the by-laws provides that, “if a member engages in the sale of intoxicating drinks,” he shall be suspended from the order, without action on the part of the officers; “and the record keeper,when any such suspension takes place, shall not receive further assessments from such suspended member. He shall enter such suspension on his record, and report the same to the supreme record keeper, as he would report any other suspension, giving date and cause thereof; and, in case any assessment shall be received from a member who has thus engaged in a prohibited occupation after his admission, the receipt thereof shall not continue the benefit certificate of such member in force, nor shall it be a waiver of his engaging in such prohibited occupation.” Some time after appellee's husband was accepted as a member, he did engage in the saloon business, and sold intoxicating drinks, and, while so engaged, died. The officers of the local tent knew that appellee's husband was engaged in selling intoxicating drinks, and with such knowledge continued to accept his dues and assessments. Appellant's deputy supreme commander also knew that the member was so engaged. On the day appellee's husband died, a committee from the local tent called at his home, which was connected with his saloon, to take charge of the burial. This committee, on the same day, notified the chief officers of appellant of such death, and stated in the notice that he was engaged in the saloon business. At the same time they collected from the appellee an assessment, which was then due from her husband, and remitted it to the head office of appellant. Upon receipt of the notice of death, the chief officers sent blanks for making proof of death, and such proof was made, and returned by appellee. Appellant refused to pay the amount, or any amount covered by the certificate, and the appellee brought this action to enforce payment. The complaint was in three paragraphs. Appellant answered in three paragraphs, and, upon the issues being joined, there was a jury trial, resulting in a verdict for appellee. Appellant's motion for a new trial was overruled, and judgment rendered on the verdict. The errors assigned are: (1) The overruling of appellant's demurrer to the first paragraph of complaint; (2) the overruling of appellant's motion to strike out parts of the third paragraph of complaint; (3) the sustaining of appellee's motion to strike from the files the second paragraph of answer; and (4) the overruling of the motion for a new trial.

The first error assigned is waived by appellant in failing to discuss it. In Tucker v. Sellers, 130 Ind. 514, 30 N. E. 531, the court say: “The appellant's counsel have not pointed out any objections to the complaint, but say in general terms that it is not good. We must, under the long-settled rules of the court, decline to search for defects in the complaint, and assume that none exists. Counsel cannot, by general assertions in their briefs, secure a reversal of a judgment because of supposed defects in a pleading. Defects which are not apparent from a bare statement must be specifically pointed out by counsel, and they must support their position by argument, and, if need be, by the citation of authorities.” Because counsel have not attempted to point out and argue any defects in the first paragraph of complaint, we have not thought it necessary to refer to its several averments.

The second and third specifications of the assignment of error do not present any question for decision. The rule is firmly settled that, to present any question for review upon appeal on the ruling of the trial court to strike out a pleading, or a part thereof, such pleading or parts of pleading, the motion and ruling thereon, must be brought into the record by a bill of exceptions. Iddings v. Iddings, 134 Ind. 322, 33 N. E. 1101;Dudley v. Pigg, 149 Ind. 363, 48 N. E. 642;Holland v. Holland, 131 Ind. 196, 30 N. E. 1075;City of Indianapolis v. Consumers' Gas Trust Co., 140 Ind. 246, 39 N. E. 943, 27 L. R. A. 514;Smith v. State, 140 Ind. 343, 39 N. E. 1060;Owens v. Tague, 3 Ind. App. 245, 29 N. E. 784;Huggins v. Hughes, 11 Ind. App. 465, 39 N. E. 298;Bennett v. Seibert, 10 Ind. App. 369, 35 N. E. 35, 37 N. E. 1071;Fordice v. Beeman, 10 Ind. App. 295, 36 N. E. 937. Appellant has failed to comply with this rule in this instance, and hence, upon the questions arising upon such rulings, there is nothing presented for decision.

This leaves but one question for consideration, viz. the overruling of appellant's motion for a new trial. Before entering upon the discussion of this branch of the case, it may be important to briefly state the facts relied upon by appellant, as set out in its first paragraph of answer, and the facts which appear from appellee's reply. The answer alleged, in substance, that the appellant is a mutual, fraternal, beneficial society, incorporated under the laws of the state of Michigan; that the supreme tent is the highest authority in the association, and authorized to prescribe laws for its government. Subordinate to this are great camps and subordinate tents. It is further averred that the laws of the supreme tent enter into and become a part of the contract between the association and its beneficial members. The answer then sets out verbatim certain provisions of the laws governing the association, showing the manner in which it is organized, its objects, etc. And among other laws pleaded is section 142, being the one referred to in plaintiff's complaint, which mentions the classes of persons who shall not be admitted into the order. The prohibitory clause contains the following: “And no person shall be eligible for membership in the order who is engaged, either as principal, agent, or servant, in the manufacture or sale of spirituous, malt, or vinous liquors as a beverage; and, should any beneficial member of the order engage in any of the above-named prohibited occupations after his admission, his benefit certificate shall become null and void from and after the date of his so engaging in such prohibited occupation, and he shall stand suspended from all rights to participate in the benefit funds of the order, and no action of the tent or of the supreme tent shall be a condition precedent to such suspension. The record keeper, when any such suspension takes place, shall not receive further assessments from such suspended member. He shall enter such suspension on his records, and report the same to the supreme record keeper, as he would report any other suspension, giving date and cause thereof; and, in case any assessment shall be received from a member who has thus engaged in a prohibited occupation after his admission, the receipt thereof shall not continue the benefit certificate of such member in force, nor shall it be a waiver of his engaging in such prohibited occupation.” The laws set out in this paragraph also show that a regular application must be made for membership, showing, among other things, the occupation of the applicant. The laws also provide that the subordinate tent shall be the agent of the members in making application for membership, the collection and transmission of dues and assessments, the serving of notices and the like. The answer then proceeds to aver that the deceased, Thomas H. Powell, applied for membership on the 21st day of September, 1893, through the Indianapolis Tent No. 35, organized as a subordinate tent in the city of Indianapolis; that said application was in writing, signed by the appellant, upon a blank form furnished for the purpose; and that, in reliance upon the representations made in the application, the beneficial certificate was issued to the deceased. The answer then avers that the deceased engaged in the saloon business, and admits that assessments were received thereafter, but without knowledge on the part of the association that he was so engaged, and that the association had no such knowledge until after his death. It is then averred that the association is ready and willing to return to the appellee the assessments received, and the amount thereof is brought into court for her use and benefit. With this paragraph of answer was filed as an exhibit the written application of the insured for membership. By this application, it is disclosed that the applicant's occupation was that of a bookkeeper, and in it he also states that he was never engaged in the sale or manufacture of intoxicating liquors. The paragraph closes by averring that, by reason of the facts therein stated, all rights under the beneficial certificate were forfeited by the deceased, having engaged in the sale of intoxicating liquors. A copy of the certificate issued to the deceased was also filed with the answer as an exhibit. In the affirmative reply to the first paragraph of answer, facts are alleged whereby it is sought to show a waiver and estoppel on the part of appellant. It is averred that 10 months after the insured...