Supreme Lodge Knights of Pythias v. Andrews

Roby, C. J. 1. A judgment for appellees herein was heretofore reversed by this court. Supreme Lodge, etc., v. Andrews (1903), 31 Ind. App. 422. The cause was retried without any change in the issues, a statement of which is contained in the opinion therein. The assignment of errors based upon the action of the court in ruling upon demurrers to the pleadings, is not now available., the same questions having been considered and held adversely to appellant upon the prior appeal. Keller v. Gaskill (1898), 20 Ind. App. 502. The assignment based upon the action of the trial court in overruling appellant’s motion for a new trial, presents again the sufficiency of the evidence to sustain the finding. 2. A material averment of the complaint was to the effect that the application by Mr. Andrews for transfer from the second to the fourth class was arbitrarily rejected without just cause. The rejection of such application was placed by appellant, through its medical examiner-in-chief, upon the sole ground that the pulse rate of the applicant was excessive. In the absence of evidence controverting this conclusion, we held that the rejection was not shown to have been arbitrary. As the evidence now stands there is not only some evidence tending to show [3] that the pulse rate named was not necessarily inconsistent with the good health of a man of the applicant’s age, but the larger volume of evidence upon that point is to that effect; while it is shown very clearly that the applicant was at the time in good health, and so remained until his death, which was caused by injuries received by falling from a building. The finding of the court is against appellant upon this issue of fact and is conclusive. 3. There is evidence from which it might be inferred that age, rather than excessive pulse, was the actual cause of the rejection, which is not an adequate reason for such rejection. Supreme Lodge, etc., v. Andrews, supra; Sourwine v. Supreme Lodge, etc. (1895), 12 Ind. App. 447, 54 Am. St. 532. 4. The motives impelling the medical examiner are not, however, material, the right to transfer depending upon the fact's existing and not upon the examiner’s motive or opinion. Supreme Council, etc., v. Forsinger (1890), 125 Ind. 52, 9 L. R. A. 501, 21 Am. St. 196. 5. There is also evidence negativing acquiescence by Mr. Andrews in the rejection of his application for transfer, as it appears that he kept money in the hands of appellant’s officer, to whom assessments were payable, sufficient to meet assessments against him upon the increased basis, and directed that such money be applied to their payment. It was not necessary to a preservation of his right that he institute mandamus proceeding to compel recognition of it. Jackson v. Northwestern, etc., Assn. (1891), 78 Wis. 463, 47 N. W. 733. 6. Whether he acquiesced in the action taken upon his application was also a question of fact, and inferences which may be drawn from the lapse of time are inferences of fact not now open to review. Exception was taken to the introduction of various items of evi [4] deuce, the admissibility of which is sufficiently shown by what has been said. Judgment affirmed. Black, P. J., did not participate.