178 Ind. 122 | Ind. | 1912
This action was brought by appellee on a benefit certificate issued by appellant to appellee’s husband, in which she was named as the beneficiary. There was a trial; verdict and judgment in favor of appellee.
The errors assigned and not waived are the overruling of (1) appellant’s motion for a new trial, (2) the demurrer to the reply.
It is alleged in the complaint that the certificate suea on was issued on January 31, 1899; that in July, 1904, appellant refused to accept any further assessments, etc., from said Adam E. Lennert, and wrongfully declared the certificate of insurance forfeited, and denied all liability, and refused to recognize any liability thereunder; that said Adam E. Lennert.died in February, 1908. Performance by said Lennert of all the conditions in said certificate is alleged.
Appellant answered that at the time Lennert became a member of the order, and at all times afterward, there was in force among the laws of the order §100, as follows:
“No person shall be admitted to this order who is engaged as principal, agent or servant, in the sale of spirituous or malt liquors as a beverage, and should any member of the order engage in the above prohibited occupation, after his admission he shall, ipso facto, immediately stand suspended from all rights and benefits of the order without any action whatever, and his beneficial certificate shall immediately become null and void.”
That afterward “on or about July 15, 1904, said Lennert engaged in the business and occupation of a saloon-keeper in the city of Evansville and did then and there become and continue to be engaged as principal in the sale of spirituous and malt liquors as a beverage in said city and did then
The third paragraph of answer contained substantially the same allegations as the second, and also alleged that in order to secure his membership in the order he signed and presented his application for membership, January 30, 1899, and also answered certain questions, two of which questions and answers were as follows: “11. What is your occupation? A. Teamster. 12. Are you now engaged in the sale of intoxicating liquors as a beverage, either as principal, agent or servant? A. No.” And as a part of said application for membership said Lennert further expressly agreed, among other things, as follows: “I hereby declare and warrant, that the above are fair and true answers to the foregoing questions, and I hereby agree that these statements and warranties, together with those hereinafter made to the examining physician in this application, and the laws of the Supreme Tribe of Ben Hur, now in force and that may hereafter be adopted, shall form the basis of this contract for beneficial membership;. that any untrue or fraudulent answers, any suppression of facts in regard to my health, age, occupation, personal habits, * * * shall vitiate my Beneficial Certificate and forfeit all payments made thereon. I also agree that should I now be engaged in, or should I hereafter engage in any occupation, trade or calling prohibited by the laws of the Supremo Tribe, that from and after the date of my so engaging in such prohibited occupation, trade or calling, my right, as well as that of my beneficiary, to participate in the benefit funds of the Order, shall cease and become null and void, and that I shall stand suspended as a member without any notice from the Court or Supreme Tribe, and any payment of dues or assessments by me or receipt thereof by any officer or member of the Court or
This paragraph of answer, like the second, relies on the forfeiture ofsaid certificate resulting from Lennert’s engaging in the saloon business in July, 1904. To these two paragraphs appellee replied, that at the time said Lennert became a member of the order, and at the time he made application for the certificate of insurance sued on, and at the time it was issued and delivered to him “he was then and continued to be engaged in the sale of spirituous and malt liquors as' a beverage for the F. W. Cook Brewing Company, until the 1st day of July, 1904, on which day he opened a saloon and entered into business for himself. That, at the time he made his application for membership and for the certificate sued upon, he made known to the agent and solicitor of the subordinate lodge, of which he became a member, and collected his membership fees, dues, knew at all times of the character and nature of his occupation, which was that of driving a beer wagon for F. W. Cook Brewing Company, soliciting orders for, and delivering beer, and collecting money therefor, and that his application for membership was accepted and his dues and assessments accepted from that time on and up to and including the month of June, 1904, with full knowledge of said facts, and that, on the — day of July, 1904, the head officer of the defendant order learned of the fact that said Adam Lennert was engaged in and operating a saloon, in the sale of spirituous and malt liquors as a beverage, and liad been engaged in the sale of spirituous and malt liquors as a beverage for F. W. Cook Brewing Company, as stated, at the time he made his application and at all times thereafter, up to the time that he entered into business for himself. That the head officers of the defendant order, on learning the facts, on the — day of July, 1904, refused to accept any further money or payments from said Adam Lennert, declared his certificate of membership
It is first insisted by appellant that the court erred in overruling appellant’s motion for a new trial. Causes assigned for a new trial were (1) the verdict of the jury is contrary to law, and (2) the verdict is not sustained by sufficient evidence.
The evidence and the facts admitted in the pleadings show that when Lennert applied for and received his benefit certificate he was the driver of a beer wagon for the F. "W. Cook Brewing Company; that it was his duty, as such driver, to deliver barrels and kegs of beer, on orders taken by himself and others, and to collect the money for the barrels and kegs of beer delivered by him, and account to the brewing company therefor; that he continued in this business until July, 1904, when he engaged in the business of running and operating a saloon,
Appellant, by its agents and officers, learned in July, 1904, that said Lennert had in that month engaged in the saloon business, and refused to accept his money and continue his membership, because of his going into said saloon business in July, 1904; that said Lennert offered to pay the assessments and continue his membership after he engaged in the-saloon business in July, 1904; that the offer was refused.
Bnt even if said Lennert as driver of a beer wagon was engaged in the sale of malt liquors as agent or servant of the brewing company, as alleged in the reply, there was no evidence that appellant, through its agent who solicited said insurance or otherwise, had any notice or knowledge thereof until after the benefit certificate had been forfeited on account of Lennert’s engaging in the saloon business in July, 1904. Neither was there any evidence that appellant declared said benefit certificate “forfeited and void solely upon the ground that said member had misrepresented his occupation in his application, and secured membership in said order contrary to the by-laws,” as alleged in the reply.
of such provision. Ohio Farmers Ins. CCo. v. Vogel (1906), 166 Ind. 239, 76 N. E. 977, 3 L. R. A. (N. S.) 966, 117 Am. St. 382, 9 Ann. Cas. 91; Masonic, etc., Assn.
This does not aver or show that appellant through its agents or otherAvise, had notice or knoAvledge that Lennert at and during the time mentioned was engaged as agent or otherwise in the sale of spirituous and malt liquors as a 'beverage. Such an allegation was necessary to the sufficiency of the reply, even as an argumentative general denial.
Other questions are argued in appellant’s brief, but as they may not arise on another trial, they are not considered.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial and to sustain appellant’s de
Note.—Reported in 98 N. E. 115. See, also, under (1) 29 Cyc. 245; (2) 29 Cyc. 232; (3) 29 Cyc. 181; (4) 29 Cyc. 194; (5) 29 Cyc. 194; 27 L. R. A. (N. S.) 446; (6) 29 Cyc. 181, 182; (7) 29 Cyc. 195; 13 L. R. A. (N. S.) 884; (8) 25 Cyc. 862; (9) 29 Cyc. 195; (10) 29 Cyc. 227. As to the waiver of, or estoppel to deny, the forfeiture of a benefit certificate for a violation of the contract of insurance other than the failure to pay dues or assessments, see 12 Ann. Cas. 639. As to the right of insured to return of premium where policy is void or voidable because of misrepresentations on his part, see 32 L. R. A. (N. S.) 298. As to effect of knowledge by insurer’s agent of falsity of statements in application, see 16 L. R. A. 33. As to forfeiture of insurance policy by member of a benefit society, see 52 Am. St. 572.