Knapp v. Order of Pendo

Rudkin, J. — On the 17th day of April, 1902, the defendant, a mutual benefit association, organized and existing under the laws of the state of California, with branches, known as lodges or councils, in the state of Washington, issued and delivered to David Knapp, since deceased, a certificate of membership in the relief fund of said order, payable to plaintiff herein as widow of said — 603 — deceased, conditioned, among other things, for the payment of a funeral benefit of $75, and a further monthly pension of $20 per month for á period of ten years, in the event of the death of said member. Said certificate was issued upon the express condition that the statements made by the applicant in his application for such certificate of membership were true. The constitution and bylaws of the order, which were made a part of the certificate, further provide, “that in the event of the death of any member by suicide during the first year of membership, his or her beneficiary shall not be entitled to recover any benefits whatever.” The complaint was the usual form in such cases. The answer, in addition to the denials, alleged affirmatively that the deceased, in his application for membership, stated that he had never been addicted to the excessive use of malt or alcoholic stimulants, which statement was false and untrue; and, second, that the deceased came to his death within one year from the issuance of the certificate, and that his death was caused by his own voluntary, wilful, and unlawful act. The reply denied the affirmative-parts of the answer, and alleged that, if the death of the said Knapp was caused by his own act, such act Was not voluntary or wilful, but was the result of insanity and mental derangement. A verdict was rendered for plaintiff on the trial, and, from the judgment entered thereon, this appeal is taken. We will now briefly consider the numerous errors assigned. (1) That the court erred in awarding the plaintiff a jury trial, for the reason that a demand therefor was not made and the jury fee paid at the time the case was called to be set for trial, as required by the act of March 6,-1903, Laws 1903, p. 50. It is within the discretion — 604 — of the trial court to permit a demand for a jury to be made after the case is called to be set for trial, or to submit the issues of fact in a case to a jury of its own motion, and no error can be predicated upon its ruling in that regard. (2) That the court erred in allowing the filing of a supplemental complaint. The action was not brought on for trial for about a year after its commencement. The court allowed a supplemental complaint to be filed, including the monthly installments which accrued after the commencement of the original action. The right to recover these installments |followed the right of recovery in the main action as a matter of course, and the filing of the supplemental complaint was properly allowed. (3) That the court erred in refusing to strike the complaint and dismiss the action for the refusal of plaintiff to answer certain interrogatories propounded to her. The plaintiff objected to interrogatory number 9, for the reason that the same was immaterial and irrelevant, ¿ks soon as this objection was disposed of by the cour% the interrogatory was answered. This was a sufficient compliance with the statute. Interrogatory number 11 was answered, and, if the answer was not sufficiently full and explicit, the remedy was by motion to require a more specific answer, and not by motion to dismiss. The motion to dismiss was properly overruled. (4) The fourth and fifth assignments relate to the refusal of the court to grant the motion for a nonsuit when first interposed, and in reopening the case to admit further proof on the part of the plaintiff. This is a common practice, and was clearly within the discretion of the trial court. (5) That the court erred in admitting in evidence a copy of a written demand for blanks upon which to submit — 605 — proof of death. In support of this assignment, the appellant claims that the local lodge was under no obligation to furnish these blanks. This seems to be true, but it is equally true that the plaintiff was under no obligation to furnish proof of her claim. This duty is imposed upon the secretary of the local lodge. The offer was wholly irrelevant, and no prejudice or injury resulted therefrom. (6) That the court erred in overruling the motion for nonsuit. It was not incumbent upon the plaintiff to prove that the statements contained in the application for membership were true. If false, this was matter of defense. There was evidence that all dues had been paid; the duty of presenting the claim to the supreme, secretary was imposed upon the secretary of the local lodge and not upon the plaintiff, and we think it sufficiently, appears that all remedies within the order had been exhausted, and that further appeal to the order would be useless, if these were material facts. There was no merit in the motion, and the same was properly denied. (7) No sufficient objection was made to the testimony referred to in the eighth assignment; and this court will not consider it. (8) The verdict of the coroner’s jury, if admitted, could only prove that the deceased came to his death by his own hand, and this was an admitted fact in the ease. (9) The witness Rosa Carver, on her direct examination, was not interrogated as to the sanity of the deceased, or upon any subject connected therewith. The question, asked her on cross-examination as to the sanity of the deceased and as to his actions and conduct, was not proper cross-examination, and the objection should have been sustained upon that ground. But, inasmuch as the witness might have given the same testimony in rebuttal, the rul — 606 — ing is not of sufficient moment to warrant a reversal of the judgment. (10) The application for a continuance in the midst of the trial, to enable the defense to obtain and produce the original application, was addressed to the sound discretion of the trial court, and no abuse is shown. (11) The first and fourth instructions given by the court of its own motion, and the third and fourth given at the request of the plaintiff, each of which was excepted to by the defendant, state the law correctly and it would serve no useful purpose to set them out at length in this opinion. The ninth instruction was properly refused, as it was not the duty of the plaintiff to file her claim with the supreme secretary of the order for the reasons already stated. The second instruction given by the court, and the sixth, seventh, and eighth instructions requested by the defendant bore upon the question of suicide and insanity. Upon this question the court instructed the jury as follows: “If the assured, being in the possession of his ordinary reasoning faculties, from anger, pride, jealousy, or desire to escape from the ills of life, intentionally takes his own life, the proviso attaches and there can be no recovery. If the death is caused by the voluntary act of the assured, he knowing and intending that his death shall be the result of his act, hut when his reasoning faculties are so far impaired that he is not able to understand the moral character, the general nature, consequences and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse which he has not the power to , resist, such death is not within the contemplation of the parties to the contract, and the defendant is liable.” The above instruction is in the language of the supreme court of the United States in the case of Life Insurance Co. v. Terry, 15 Wall. 580, and meets with the approval of this' court. See, also, Blackstone v. Standard Life etc. — 607 — Ins. Co., 74 Mich. 592, 42 N. W. 156, 3 L. R. A. 486, and cases there cited. There was no error in the giving or refusing of instructions. The other assignments are not well taken, and deserve no special comment. Finding no reversible error in the record, the judgment of the court below is affiriiied. Mount, O. J\, and Fullerton, Dunbar, and Halley, JJ., concur.