Grand Lodge Ancient Order of United Workmen v. Hall

76 N.E. 1029, 37 Ind. App. 371, 1906 Ind. App. LEXIS 42

• Court: Indiana Court of Appeals
• Decided: February 20, 1906
• Docket: No. 5,404
• Status: Published

Opinion

Roby, C. J.

This is the second appeal. A judgment for appellee was heretofore reversed because of the insufficiency of the first paragraph of complaint. The objection urged was that it “failed to aver a compliance with all the conditions imposed upon the insured and the beneficiary by the contract.” It was then said by the court that there must be “either a detailed allegation of performance of every condition or a general allegation of the performance of all conditions.” Grand Lodge, etc., v. Hall (1903), 31 Ind. App. 107. When the cause was returned to the trial court, an amended complaint in two paragraphs was filed. The averment contained in the first paragraph thereof, relative to performance, being in terms as follows: “Immediately after the death of said William H. Hall, plaintiff furnished defendant with proof of death of said William H. Hall, and plaintiff has performed all of the conditions of said policy on her part to be performed.”

1. Under the constitution and by-laws of the association it was incumbent upon the deceased member to keep up his membership. The beneficiary had only a contingent interest prior to the death of the member. Carter v. Carter (1905), 35 Ind. App. 73; Bunyan v. Reed (1904), 34 Ind. App. 295.

2. The appellant, in order to make a prima facie case, was required to plead performance by the assured. Grand Lodge, etc., v. Hall, supra; Supreme. Lodge, etc., v. Knight (1889), 117 Ind. 489, 491, 3 L. R. A. 409. The allegation made is that the plaintiff has furnished proofs of death and performed all of the conditions “on her part to be performed.” Prior to death of the member no condition on her part to be performed existed.

3. It is undoubtedly true that an allegation of performance by one upon whom a duty rests may be supported by proof of acts done by others for him. Had it been averred that the insured performed the conditions upon his part to be performed, proof of payment of assessments by the appellant would therefore have been admissible, but no such averment is made, either in form or in substance. The demurrer to the first paragraph of amended complaint ought therefore to have been sustained.

4. In view of the necessity for a new trial, in which the same questions will arise, it is not inappropriate to say that, while logically there may he some distinction between the admission of statements by the member of a benefit association as against his beneficiary in an action of this nature and statements of* a similar character by the insured, under an ordinary life policy, the holding of the Supreme Court that the same rule obtains, made after due consideration, is binding upon this court. Supreme Lodge, etc., v. Schmidt (1884), 98 Ind. 374. Viewed in a broad way there is no reason why a distinction ought to be made. Conditions may exist under which they are receivable. Hauqhton v. Aetna Life Ins. Co. (1905), 165 Ind. 32.

The judgment is reversed as of the date of submission, and the cause remanded, with instructions to sustain appellant’s demurrer to the first paragraph of amended complaint and for further consistent proceedings.