Supreme Tent, Knights of the MacCabees of the World v. Ethridge
| Decision Date | 06 April 1909 |
| Docket Number | No. 6,386.,6,386. |
| Citation | 87 N.E. 1049,43 Ind.App. 475 |
| Parties | SUPREME TENT, KNIGHTS OF THE MACCABEES OF THE WORLD, v. ETHRIDGE. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Lake County; Chas. W. Hanley, Judge.
Action by Jennie E. Ethridge against the Supreme Tent, Knights of the Maccabees of the World. From a judgment for plaintiff, defendant appeals. Affirmed.
J. G. Ibach and Sayre & Hunter, for appellant. F. N. Gavit and J. E. Westfall, for appellee.
The demurrer of the appellant, for want of facts to the appellee's complaint, was overruled. In the complaint it was alleged that the appellant was a fraternal benefit society, duly incorporated; that on June 9, 1902, the appellant issued to William O. Ethridge its policy of insurance, therein denominated a “benefit certificate,” dated June 3, 1902, by the terms of which it promises to pay to the appellee $1,000 upon satisfactory proof of the death of said William O. Ethridge; that appellee, at the time said certificate was so issued, and at all times afterwards, until the death of said William, was his wife; that he died September 10, 1903; that he and the appellee have fully complied with all the conditions of said contract or benefit certificate, a copy of which was attached to and made a part of the complaint. It is urged, by way of objection to the complaint, that it fails to show that the insured was a member of the appellant at the time of his death, or at any time, and fails to allege compliance with all the requirements and laws of the order. The complaint shows that the appellant issued to William O. Ethridge its policy, being a certificate, made a part of the complaint as an exhibit. By the terms of the certificate it was certified that he had been regularly admitted as a member of a certain designated “Tent,” and that in accordance with, and under the provisions of, the laws of the Supreme Tent of the Knights of the Maccabees of the World he was entitled to all the rights, benefits, and privileges of “membershiptherein.” This certainly was a certain showing that the appellee's husband became a member of the appellant. Membership in the order was not, by the terms of the certificate, limited to any designated period. He became what it appears in other parts of the record was called “a life benefit member” under the laws of the order. It was alleged that William O. Ethridge and the appellee “have fully complied with all the conditions of said contract or benefit certificate.” The general allegation relating to a compliance with the conditions of the contract was sufficient. The words “complied with” in the connection in which they were used served the same purpose as the word “performed” found in the statute. Section 376, Burns' Ann. St. 1908; Grand Lodge A. O. U. W. v. Hall, 31 Ind. App. 107, 67 N. E. 272;Pacific, etc., Ins. Co. v. Turner, 17 Ind. App. 644, 47 N. E. 231;Voluntary Relief, etc., v. Spencer, 17 Ind. App. 123, 46 N. E. 477;Hanover Fire Ins. Co. v. Johnson, 26 Ind. App. 122, 57 N. E. 277. The complaint was sufficient.
It is assigned that the court erred in sustaining appellee's demurrer to the third paragraph of answer. In the portion of the appellant's brief purporting to show so much of the record as presents this alleged error it is said that the third paragraph admits that the assured was a member in good standing at the date of the alleged death, and states that the appellee failed, neglected, and refused to make any proof, or give any notice, or make any claim, under the certificate sued on, within one year from the date of said death, “and that under section 495 of the appellant order, setting such section out in full, and by reason of such failure, the certificate sued on is null and void.” From this statement the terms or the purport of the rule mentioned is not given. We have looked into the record, and carefully read the paragrph in question. It does not show that the section of the laws of the order therein set forth was in force at the time of the issuing of the policy, or at the time of the death of the assured, or show when it was enacted or in force. The court was not bound to presume, in favor of the pleader, that the section was applicable to the appellee. It was incumbent upon the appellant to plead facts, and not conclusions of law. However, upon a further examination of the record we find that the section in question was introduced in evidence by the appellee, and it was not therefore deprived of its consideration on the trial. No error intervened, because of this ruling, for which the judgment should be reversed.
It is also assigned that the court erred in overruling appellant's motion for a new trial. Neither the motion nor its contents, nor reasons in support thereof, are set out in appellant's brief, as required by the rules of the Supreme and this court; but, as it appears under the heading “points” that the evidence was not sufficient to sustain the verdict, and there has been an attempt to give a recital of the evidence, we will give attention to this question. From the disjointed recitals and statements concerning the evidence it is...
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