71 Ind. App. 601 | Ind. Ct. App. | 1919
— -This is a second appeal in this cause. On the trial subsequent to the decision on the former appeal, the pleadings theretofore filed remained unchanged, but appellant filed two additional paragraphs of answer, numbered 5 and 6. Appellee filed
The sixth paragraph of answer, briefly stated, alleges in substance, among other things, that the contract in suit is an Illinois contract; that it provides that the said benefit certificate should be null and void if said Young'became intemperate '; that, under the laws of the State of Illinois, the contract was valid and binding on the appellant and said Gr. .W. Young; that there is no provision in the statutes of the State of Illinois rendering said contract illegal or
Appellee’s said second paragraph of reply alleges in substance that, for a long time prior to the death of said Young, appellant had full knowledge of the alleged fact that said Young was intemperate in the use of intoxicating liquors, but continued to accept and retain assessments from him. On the trial subsequent to the former appeal, the-’cause was submitted to a jury, resulting' in a verdict and judgment in favor of appellee. Appellant filed a motion for a new trial, which was overruled, and has assigned this action of the court as the sole error on which it relies for reversal.
“If any member of.this society * * * shall become intemperate in the use of intoxicating liquors * * * or if his death shall result directly or indirectly .from his use of intoxicating liquors * '* * then the certificate held by said member shall by such acts become and be absolutely null and void, and all payments made thereon shall be thereby forfeited.”
It will be noted that the part of the contract above quoted contains two conditions which would constitute a defense to an action on the contract, viz.: (1) The intemperate use of intoxicating liquors by the insured. (2) The death of the insured resulting directly or indirectly from the use thereof. These two grounds of defense are wholly separate and distinct. Busing v. Modern Woodmen, etc. (1909), 151 Ill. App. 49; Curtis v. Modern Woodmen, etc. (1915), 159 Wis. 303, 150 N. W. 417. The above, instruction evidently relates to the second ground of defense stated above. It will -be observed that the instruction under consideration informed the- jury that such defense was not available to appellant, if it knew of the intemperate use of intoxicating liquors on the part of said Young, but notwithstanding such knowledge, it continued to accept the assessments provided by the terms of the
Appellee further contends that, if this appeal is entertained, any error relating to the giving or refusing to give instructions should not be considered, for the reason that they are only set out in that part of appellant’s brief devoted to argument, and it does not appear “that all the instructions are contained in the brief or bill of exceptions.”
Appellee is in error as to where the instructions appear in appellant’s brief. It is not necessary that the brief of an appellant should contain all the instructions given in order to have the action of the court in giving and refusing to give certain instructions considered. Simplex, etc., Appliance Co. v. Western, etc., Belting Co. (1909), 173 Ind. 1, 88 N. E. 682; Waters v. Indianapolis Traction, etc., Co. (1916), 185 Ind. 526, 113 N. E. 289; Indianapolis, etc., Traction Co. v. Senour (1919), ante 10, 122 N. E. 772. The only bill of exceptions appearing in the record is the one containing the evidence, and it is not necessary that anything with reference to the instructions be shown therein.