129 Minn. 214 | Minn. | 1915
This action is to recover on a beneficiary certificate issued in Feb
The complaint alleged tbe foregoing facts, the death of Eosa Eosenthal, notice thereof to defendant, and a denial of liability and refusal to pay. Tbe answer admitted tbe issuance of the certificate by tbe American Guild, the assumption of its obligations by defendant and tbe death of the insured. It set up two defenses; (1) Fraudulent misrepresentation as to the age of the insured made in ber application; (2) that the insured paid no assessments or dues after March, 1908, by reason whereof ber certificate lapsed April SO, 1908, under tbe constitution, laws and rules of the American Guild and of defendant. In addition tbe answer set forth the certificate, from which it appeared that the amount of the insurance was “a sum not exceeding $1,000, less tbe amount to be deducted for unexpired life expectancy of said member, as authorized by and in accordance with tbe constitution and laws of tbe American Guild in force at tbe time of death.” The reply, in addition to a general denial, contained these words:
“Plaintiff admits that the rules and laws of tbe defendant require of its beneficiary members tbe payment of certain assessments by way of insurance premiums, and alleges that Eosa Eosenthal during ber membership in said respective orders, and up to tbe time of ber death, was ready, able and willing to pay all such assessments, and in fact did pay all assessments which tbe defendant herein required or permitted her to pay, and tbe defendant waived tbe payment of any other and further assessments or dries than those actually paid by her.”
On tbe trial, it being announced by defendant that it made no •question of tbe failure to furnish proofs of death, plaintiff rested. Defendant moved to dismiss on the ground that plaintiff bad not proved tbe payment of dues and assessments, or any excuse for tbe
The grounds urged for reversal are: (1) That there was a departure in pleading; (2) that the court erred in admitting certain evidence as to the age of the insured; (3) that the verdict is not sustained by the evidence; (4) that the reply admitted the allegations of the answer as to nonpayment of assessments and dues; (5) that the verdict is excessive, because of errors in the court’s instruction that the monthly assessments were $1.32.
Order affirmed.