Page images

of the parties named in the complaint, and in peal has not been properly perfected as a whose favor judgment was rendered against the term time appeal. Penn, etc., Plate Glass Co. appellant, are not properly designated in the assignment of errors, either in its title or body, v. Poling (1913) 52 Ind. App. 492, 100 N. E. we are compelled to hold that the assignment 83; Kyger v. Stallings (1913) 55 Ind. App. does not comply with rule 6, and therefore that 196, 103 N. E. 674; W. C. Hall Milling Co. V. the appeal must be dismissed."

Hewes (1914) 57 Ind. App. 381, 105 N. E. 241; In this case appellee was a party to the Coxe Bros. Co. v. Foley (1915) 58 Ind. App. judgment in his representative capacity, and 584, 107 N. E. 85; Michigan Mut. Life Ins. not as an individual. Upon the authority of Co. v. Frankel (1898) 151 Ind. 534, 50 N. E. the cases cited, supra, we hold that he is not 304; Tuttle et al. v. Fowler et al. (1915) 183 properly described as such representative in Ind. 99, 107 N. E. 674. the assignment of errors, and is therefore not Appellant cites the case of Atkinson et al. before this court in the same capacity in v. Williams (1898) 151 Ind. 431, 51 N. E. 721, which he recovered judgment. This is but this authority does not meet the quesground for dismissal.

tion. We recognize the rule, as there stated, Appellant cites the case of First National that when judgment is rendered before the Bank v. Farmers', etc., Bank (1908) 171 Ind. motion for a new trial for cause is filed, the 323, 86 N. D. 417, in support of his conten-final judgment within the me of the tion that the assignment of errors is suffi- statute governing appeals is the judgment of cient. It will be observed, however, that the court overruling such motion for a new the name of the appellant in question in trial for cause, and we have given it full efthat case is set out as "Charles R. Wheeler, fect, in passing upon the motion in this case, trustee for the First National Bank of Peoria, to dismiss the appeal. The final judgment Ill.," and therefore the question here pre in this case, according to the rule just stated, sented is not the same as the one decided in was rendered at the December term, 1915. that case.

In order to have a term time appeal, it was [2] Appellee urges as a further reason for necessary that the penalty and surety of the the dismissal of this appeal that appellant appeal bond be fixed and approved at that has not complied with the statute providing term, but no surety was named or approved for term time appeals, and has failed to give at such term. This was an omission of an notice as required in case of vacation ap- essential requirement, and the filing and appeals. The facts are as follows: Judgment proving of a bond after the close of such was rendered and entered by the trial court term, and within the time given, would not against appellant on the 12th day of March, have the effect of curing such omission. 1915, the same being the eleventh judicial This appeal has been on the docket of this day of the March term, 1915. On the same court for more than 90 days, to wit, since date appellant filed a motion for a new trial, April 11, 1916, and no steps have been taken which was subsequently overruled on the to give notice, as required by section 681, 20th day of January, 1916, the same being the Burns 1914, in cases of vacation appeal. twenty-eighth judicial day of the December Appellee has not joined in error or otherterm, 1915, at which time appellant prayed an wise entered a general appearance. The appeal to this court, which was granted on authorities are controlling, and determine the condition that appellant would, on or before duty of the court under the facts shown in the second Monday of the March term, 1916, the record. file its appeal bond with penalty in the sum Motion sustained, and appeal dismissed. of $1,500. On the 13th day of March, 1916, the same being the seventh judicial day of the March term, 1916, of the trial court, and

(65 Ind. App. 502) within the time given by the court, appellant

CONTINENTAL INS. CO. V. BAIR et al.* filed such bond, with penalty in said sum,

(No. 8983.) and with sureties as in said bond named, (Appellate Court of Indiana. Jan. 5, 1917.) which bond was on said date approved by 1. APPEAL AND ERROR 1078(1) ASSIGNthe court. The transcript was filed in this MENTS OF ERROR-WAIVER. court April 11, 1916, and the cause submitted Assignments of error are waived by appelon May 11, 1916. Where, as here, the entry lant's failure to present any points or propo

sitions relating thereto. of the judgment preceded the ruling on the

[Ed. Note.-For other cases, see Appeal and motion for a new trial, the latter action of Error, Cent Dig. $ 4256; Dec. Dig. Om the court marked the beginning of the time 1078(1).] limited for an appeal. It will be found that 2. INSURANCE 624(5) NECESSABY PABneither at the time of the ruling on the mo TIES-PLAINTIFFS-STATUTE. tion for a new trial, nor at any time within all who join as plaintiffs must have an interest

Under Burns' Ann. St. 1914, 88 251-263, the term at which the action was had, did in the subject of the action, and be united in the court approve the bond or name or ap- such interest, though their interest may not prove the sureties thereon.

Appellant con- be equal and may be severable, provided all cedes that an effort has been made to perfect matter of a suit; and this rule applies in cases

common interest in the subjectthis appeal as a term time appeal under pro- involving loss by fire, where the owner and the vision of section 679, Burns 1914. The ap lincumbrancer join in a suit on the policy where

wFor other cases seo same topic and KEY-NUMBER in all Key-Numbered Digests and Indexos

*Rehearing denied, 116 N. E. 752. Transfer denied.

the total loss exceeds the amount of the in- , where, before the expiration of the ten days cumbrance.

following the insurer's receipt of the objections [Ed. Note.- For other cases, see Insurance, to the proof of loss, and before service of the Cent. Dig. § 1568; Dec. Dig. Om 624(5).) formal notice of rescission, the insurer denied 3. PLEADING OM 67 - REQUISITES — NEGATIV. the insured, and also stated that its position

all liability under the policy and so informed ING DEFENSES. Where the facts pleaded show a cause of proofs or any affidavit or statement made in

could not be changed by any modification of the action, and also a defense thereto, the com relation thereto, any further proofs or state plaint'is insufficient unless it also contains other ments from the insured, pursuant to Burns' averments which avoid such defense.

Ann. St. 1914, § 4622g, were not required, as [Ed. Note.-For other cases, see Pleading, the law does not require the doing of a useless Cent. Dig. $ 139; Dec. Dig. 67.]

and unnecessary thing. 4. EQUITY 57—MAXIMS—INDORSEMENT ON

[Ed. Note.-For other cases, see Insurance, INSURANCE POLICY.

Cent. Dig. &$ 1391, 1392; Dec. Dig. 559(1).) Where insured notified the insurer of a mortgage on the property and obtained its 11. INSURANCE 542(1) - PROOF OF Loss – agreement to properly indorse the mortgagee's

STATUTE. interest on the policy, as required thereby, and the insurer failed to comply with such agree fire on a certain date, that the loss amounted

Proof that a house was totally destroyed by ment, equity would regard that as done which in

to $700, that insured owned the property in fee good conscience ought to have been done.

simple incumbered by mortgages, and stating [Ed. Note. For other cases, see Equity, Cent. the name of each mortgagee, and the amount Dig. $ 179; Dec. Dig. ww57.]

of his claim, furnished a "detailed schedule of 5. INSURANCE em 634(2) PROOF OF Loss

the claim," the character and extent of interSUFFICIENCY.

ests of other parties, and substantially comAverments that a fire occurred on August plied with the terms of the policy requiring 29th, and that due proof thereof was furnished notice of loss, and with Burns' Ann. st. 1914, 3 the insurer October 7th, 39 days thereafter 46228, relating to proof of loss. within the 60 days allowed by Acts 1911, p. (Ed. Note.-For other cases, see Insurance, 525, and the provisions of the policy, as against Cent. Dig. 88 1340, 1345; Dec. Dig. demurrer, sufficiently showed that the requisite 542(1).] proof of loss was made within the specified time.

12. INSURANCE C551 PROOF OF Loss [Ed. Note.-For other cases, see Insurance, STATUTE-OBJECTIONS. Cent. Dig. $$ 1603-1605; Dec. Dig. Om634(2).) Burns' Ann. St. 1914, § 4622g, requiring 6. INSURANCE Cw115(5), 581 · FIRE INSUR- insured to furnish proof of loss within 60 days, ANCE-INSURABLE INTEREST.

and, if such preliminary proof is claimed to be The mortgagees of a house covered by a remedy them by amendment or by affidavit that

defective and notice of the defects is given, to policy of fire insurance whose interest, though the objections cannot be complied with, connot in fact indorsed on the policy, was regarded by equity as having been so indorsed, templates a bona fide claim that the

proofs had an insurable interest and a cause of action omitted facts in the notice of the defects in

are defective and a definite statement of the against the insurer after loss. [Ed. Note.-For other cases, see Insurance, of loss because failing to furnish a detailed

such proof, so that objections to the proofs Cent. Dig. 88 148, 1444-1447; Dec. Dig. Ons schedule of claim, to state the interest of other 115(5), 581.)

persons, to state knowledge and proof as to 7. INSURANCE C330(2) - FIRE INSURANCE –

time and origin of the fire, and because incum. INCUMBRANCE.

brances had been placed on the property withA provision in a fire insurance policy that out the insurer's knowledge and consent, were if the property should be mortgaged the policy

insufficient. should be void relates to liens voluntarily plac (Ed. Note.--For other cases, see Insurance, ed on the property by the insured, and does not Cent. Dig. $ 1357; Dec. Dig. 551.) apply to judgments obtained against him or other liens upon the property created by law, 13. INSURANCE €551-PROOF OF Loss-ADsuch as a money judgment in a suit for divorce.

DITIONAL PROOF-AFFIDAVIT. (Ed. Note.-For other cases, see Insurance, Under Burns Ann. St. 1914, § 4622g, the Cent. Dig. 88 831-835, 837, 839; Dec. Dig. Omo insured's failure to submit an affidavit showing 330(2).]

that tbe proof of loss could not be made more 8. TRIAL Om359(2)-ANSWER TO INTERROGATO-specific, within ten days from his receipt of the RIES JUDGMENT.

insurer's objection thereto, was the omission of In passing on a motion for judgment on the only a technical detail, where the proofs furanswer to the interrogatories, the court can

nished, fairly construed, supplied all the inforonly consider the general verdict, the questions mation called for, and were not subject to the and answers, and the issues formed by the

objections. pleadings.

[Ed. Note. For other cases, see Insurance, [Ed. Note.-For other cases, see Trial, Cent. Cent. Dig. § 1357; Dec. Dig. 551.] Dig. $$ 875, 877, 878; Dec. Dig. E359(2).]



MORTGAGE. Every reasonable presumption is indulged in favor of the general verdict, and the answers

An insurer's local agent's written authority will not overcome it if it can be sustained by renew policies, and to consent in writing to

to effect insurance, to countersign, issue, and any facts provable under the issues.

their assignment and transfer, authorized him [Ed. Note.-For other cases, see Trial, Cent. to consent to a mortgage of the property in. Dig. S$ 857–860, 875, 878; Dec. Dig. Om359(1).] sured and to indorse the insurer's consent 10. INSURANCE ww559(1)-FIRE INSURANCE thereto upon the policy, so that bis agreement PROOF OF Loss-NECESSITY.

to do so was binding upon the insurer. Where the proofs of loss submitted could [Ed. Note.-For other cases, see Insurance, not be made more definite and specific, and I Cent. Dig. $ 962; Dec. Dig. 375(2).)


15. INSURANCE 209 – FIRE INSURANCE tended to contradict and weaken his testimony MORTGAGE.

in chief. The authorization of payment to a mort [Ed. Note.-For other cases, see Witnesses, gagee is a conditional assignment or transfer to Cent. Dig. 8 1284; Dec. Dig. Om 410.] the mortgagee of an interest in the policy.

23. TRIAL m295(1) - INSTRUCTIONS - CON[Ed. Note.-For other cases, see Insurance,

STRUCTION AS WHOLE. Cent. Dig. 8 479; Dec. Dig. Om 209.)

Instructions should be considered together. 16. INSURANCE 78-AUTHORITY OF AGENT (Ed. Note.-For other cases, see Trial, Cent. -CONSTRUCTION.

Dig. 88 703, 704, 713, 714, 717; Dec. Dig. An insurance agent's written authority is to 295(1).] be liberally and fairly construed, and a row and limited meaning is not to be given to Appeal from Circuit Court, Tipton County ; it, unless the language employed clearly indi- James M. Purvis, Judge. cates that such was the intention of the parties. [Ed. Note:--For other cases. see Insurance, Continental Insurance Company. Judgment

Suit by Lytel Bair and others against the Cent. Dig. § 103; Dec. Dig. Ow78.) 17. INSURANCE 372 STIPULATIONS


for plaintiffs, and defendant appeals. WAIVER.

firmed. The stipulation in a policy that none of its provisions can be waived by an agent except

Burke G. Slaymaker, of Indianapolis, for by consent of the company indorsed on the pol- appellant. Alfred Ellison, of Anderson, for icy may itself be waived either by express appellees. agreement or by conduct.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. $ 941; Dec. Dig. 372.)

FELT, C. J. This is a suit by appellees, Ly.

tel Bair and others, against appellant, Con18. INSURANCE 390 — INCUMBRANCE — INDORSEMENT-WAIVER.

tinental Insurance Company, to recover on a Where an insurer, through its authorized policy of fire insurance. The other appellees agent, obtained knowledge of a mortgage on the are alleged to hold liens on the property Covpremises covered by its policy, and agreed on ered by the policy. From a judgment in apJanuary 28, 1913, to indorse on the policy the mortgagee's interest, but the policy was not pellee's favor for $600, appellant has apat any time so indorsed before the loss August pealed, and assigned as error: (1) The over29, 1913, the insurer waived the condition re- ruling of its demurrer to the complaint; (2) quiring its consent to be indicated in writing the sustaining of the separate demurrer to apon the policy.

(Ed. Note.-For other cases, see Insurance, the eighth and ninth paragraphs of appelCent. Dig. 88 1037, 1038; Dec. Dig. Om 390.) lant's answer to the complaint; (3) the over19. EVIDENCE 587 WEIGHT AND SUFFI. ruling of the demurrer of appellant to the CIENCY-CIRCUMSTANTIAL EVIDENCE.

second paragraph of reply of appellees to It is not essential that facts be established each of the fourth, fifth, and sixth paraby direct and positive testimony, and it is sufficient on appeal if from the facts and circum- graphs of appellant's answer; (4) overruling stances proven the jury may reasonably have the motion of appellant for judgment on the referred the ultimate and essential facts neces answers of the jury to the interrogatories sary to sustain the verdict.

notwithstanding the general verdict; (5) over(Ed. Note.--For other cases, see Evidence, ruling the motion for a new trial; and also Cent. Dig. $ 2436; Dec. Dig. 0587.)

(6) in arrest of judgment. 20. INSURANCE 146(3) - FIRE INSURANCECONSTRUCTION OF POLICY.

(1) The second, third, and sixth assignWhere a policy of fire insurance was writ. ments are waived by the failure of appellant ten by the insurer's local agent without any to present any points or propositions relatformal or written application, and by special ing thereto. arrangement was kept in his office and was not seen by the insured until after the loss, the

The complaint, in substance, alleges that contract was not to be construed with that on January 3, 1913, Lytel Bair owned a strictness obtaining where the parties have like frame dwelling in Summittville, Ind., and opportunity to be advised as to its provisions.

on that day for a cash premium of $7.50 ap[Ed. Note. For other cases, see. Insurance, pellant insured the same for $600 for three Cent. Dig. & 295; Dec. Dig. Om146(3).)

years from that date. That appellee duly 21. INSURANCE Cw146(3)—FIRE INSURANCE- performed all the conditions of the policy FORFEITURE.

Where the premium has been paid and the of insurance so issued to him, and on the risk attached, every presumption will be indulg: night of August 29, 1913, said building was ed in favor of the good faith of the parties and totally destroyed by fire. That at the time to avoid a forfeiture. [Ed. Note. For other cases, see Insurance, Bair and was of the value of $700, and


of the fire the building was owned by said Cent. Dig. 8 295; Dec. Dig. Cm146(3).)

loss occasioned by the fire was $700. That 22. WITNESSES 410 — IMPEACHMENT_COB

within four days after the fire appellee Bair ROBORATION.

Where a witness has been impeached by the notified appellant of the fire, and within fiftestimony of another witness that he had made teen days from the date of the fire appellant statements out of court inconsistent with his sent an adjuster to Summittville, who investestimony in court, it is proper to corroborate such witness by proving that he had also made tigated and inspected the loss. That on Ocprevious statements in harmony with his tes- tober 7, 1913, appellee Lytel Bair furnished timony at the trial; but the rule does not per: appellant due proof of the loss of said buildmit sich corroborating testimony to support the testimony of such witness in chief on the ing. That on January 27, 1913, said appellee ground that his evidence on cross-examination by a single mortgage incumbered real estate

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

on which said building was located to secure y amount is due any of the plaintiffs on the indebtedness as follows: To George Bair, policy; that it does not appear that any of $140; Pearl McLead, $14.30; James L. Noble, the plaintiffs have furnished the proof of $50; Summittville Bank, $100; James F. loss required by the policy and by the laws Sparks, $22.07; Alfred Ellison, $20; William of the state; that it affirmatively appears Kittinger, $25; Warner & Sons, $18.75; Vin- that Lytel Bair has himself breached the son & Potts, $ The appellant was du- contract sued upon. ly notified of the giving of said mortgage im [2] Under our Code, all who join as plain. mediately after its execution and assented tiffs must have an interest in the subject of thereto, and then agreed with appellee Lytel the action and be united in such interest; Bair to cause said policy to be made payable but their interests need not be equal, and may to said mortgagees as their interests might be severable, provided all have some common appear. That appellant failed to make the interest in the subject-matter of the suit and necessary indorsement on the policy. That each is interested in seeing that all who join the appellees other than Lytel Bair join in as plaintiffs obtain relief in respect to such the action that their interest in said policy subject-matter. may be protected by the court. That each

This rule has been specifically applied in has an interest therein to the amount of the cases involving loss by fire where the owner respective claims above set out. That there of the property insured and the holder of is due on said policy the sum of $600, and incumbrance thereon joined in a suit upon no part of same has been paid by appellant. the policy against the insurance company, Prayer for judgment for $700.

it appearing that the total loss exceeded the The policy was made a part of the com- amount of the incumbrance Sections 251– plaint by exhibit, and, among other terms, 263, Burns 1914; Home Ins. Co. v. Gilman, provided that:

112 Ind. 7-9, 13 N. E. 118; Franklin Ins If the property "be or become mortgaged or Co. v. Wolff, 23 Ind. App. 549–551, 54 N. E. incumbered, or if the interest of the assured 772; Troxel v. Thomas, 155 Ind. 519–522, 58 be other than unconditional or sole ownership. N. E. 725; Judy v. Jester, 53 Ind. App. 74or if the policy be assigned, or if the risk be increased by any means within the knowledge 85, 100 N. E. 15. of the assured, then in each and every one of It is contended by appellant that the comthe above cases this entire policy shall be pull plaint shows upon its face a breach of the and void unless otherwise provided by agree insurance contract by the execution of the ment indorsed herein."

"No officer, agent or other representative of mortgage by appellee Lytel Bair to his co this company shall have power to waive any appellees, and that the averments which show provision or condition of this policy except such as hy the terms of this policy may be subject a request to have the policy made payable to to agreement indorsed hereon or added hereto the mortgagees as their interest may appear, and as to such provision and conditions no of: and the failure of appellant to comply with ficer, agent or representative shall bave such power or be deemed or held to have waived such request, fall short of showing any such provision or condition unless such waiver, right of action in appellees; that, if there is if any, shall be written upon or attached here any liability, before a recovery can be had to."

there must be a reformation of the contract The policy further provided that in case to make the policy payable to the mortgagees of loss the assured should within 15 days as their interests may appear; that the give notice in writing to the company, and terms of the policy require the interest of the within 60 days after loss should render a mortgagees to be shown upon the policy it. statement to the company, signed and sworn self. to by the assured, “stating the interest of the [3] Where the facts pleaded show a cause assured and all others in the property, the of action and also a defense thereto, the comcash value of each item and the amount of plaint is insufficient unless it also contain loss thereon, all other insurance, whether other averments which avoid such defense. valid or not, covering any part of said prop- Mallow v. Eastes, 179 Ind. 267, 270, 100 N. E. erty, and shall furnish an itemized statement 836; Johnson v. Harrison, 177 Ind. 240–248, of loss and damage to any building described 97 N. E. 930, 39 L. R. A. (N. S.) 1207. in the policy.

The policy fur The averments which show the execution of ther stipulated that to secure mortgages, if the mortgage and the failure to have the indesired, the policy should be made payable terest of the mortgagees shown upon the on its face to such mortgagee, as follows: policy defeat any recovery thereon, unless “Loss, if any, payable to John Doe, mort. avoided by the averments which show notice gagee."

to appellant of the execution of the mortgage, The memoranda accompanying the demur- | its assent and its agreement to have the polrer states that the complaint does not show icy made payable to the mortgagees as their that the plaintiffs other than Lytel Bair bave interests appear, without actually so indorsany interest in the insurance contract and ing the policy. that a joint action cannot be maintained ; [4] The averments are sufficient to show that none of the plaintiffs are shown to have notice to appellant of the execution of the an insurable interest in the property covered mortgage and an agreement with appellee

of the mortgagees upon the policy, and a fail- 1 him to effectuate the transfer, and being in all ure to comply with such agreement.

things entitled to it, it did not rest in the dis. Under our Code (Burns' Ann. St. 1914, 81 cretion of the examiner to refuse him.

Here is a manifest wrong. Yet it is asserted 249) we have but "one form of action for that although there was a wrong there is now the enforcement or protection of private no remedy. To so hold would be, to use a farights and the redress of private wrongs." the law. The arm of the law tas not been so

vorite phrase of Judge Elliott's, a reproach to Equitable principles may be invoked to re- shortened as to leave the appellants remediless. lieve against a wrong where the facts are If the application of the stricter rules of sufficient to warrant the application of such law, as formerly administered, do not furnish principles. The averments of the complaint principles of equity are

ample for the purpose.

the remedy, the more expansive and beneficent show that appellee Bair did everything neces "An eminent law-writer speaks thus: ‘Equitasary on his part to have the policy made pay- ble remedies, on the other hand, are distinable to the mortgagees as their interests guished by their flexibility, their unlimited vashould appear, and that appellant agreed to the natural rules which govern their use. There

riety, their adaptability to circumstances, and so indorse the policy and failed to carry out is in fact no limit to their variety and applicaits agreement. The failure to have the in- tion; the court of equity has the power of deterests of the mortgagees duly indorsed on vising its remedy and shaping it so as to fit

the changing circumstances of every case and the policy was, under the averments, due to the complex relations of all parties. 1 Pom. the fault of appellant. In such situation, Eq. $ 109. Again he says, at section 111: 'It the principle may be invoked that equity re- bas, therefore, never placed any limit to the

remedies which it can grant; either with re gards that as done which in good conscience spect to their substance, their form, or their ought to have been done. Sourwine v. Su-extent; but has always preserved the elements preme Lodge K. of P., 12 Ind. App. 447-451, 40 of flexibility and expansiveness, 80 that new N. E. 646, 54 Am. St. Rep. 532; Modern Bro. order to meet the requirements of every case,

ones may be invented or old ones modified, in of America v. Matkovitch, 56 Ind. App. 8–15, and to satisfy the needs of a progressive social 104 N. E. 795, and cases cited; Isgrigg v. condition, in which new primary rights and duSchooley, 125 Ind. 94-99, 25 N. E. 151; Ken- ties are constantly arising, and new kinds of

wrongs are constantly committed.' tucky Mutual Ins. Co. V. Jenks, 5 Ind. 96

“So equity will grant relief here, although 104; Stewart v. Gwynn, 41 Ind. App. 320- Croasdale never in his lifetime compelled the 325, 82 N. E. 1000, 83 N. E. 753; Randall v. transfer, by mandate, as he might have done. White, 84 Ind. 509-514; German-American We do not think it lies in appellee's mouth to

complain that some hardship may be imposed Fire Ins. Co. v. Sanders, 17 Ind. App. 134 on it by reason of his failure to insist on his 138, 46 N. E. 535; Pomeroy's Equity (30 Ed.) rights in a court of law before his death. For $8 106, 109, 111, 364, 365.

whatever hardship may arise therefrom, appellee, and not be, is responsible.

Our In Sourwine v. Supreme Lodge K. of P., conclusion, therefore, is that the trial court supra, this court considered a case in which erred in sustaining the demurrer to the coma member of the endowment rank of the K. plaint." of P. lodge complied with all of the conditions

In Modern Brotherhood of America v. Matunder which he was entitled to transfer to kovitch, 56 Ind. App. 8, 104 N. E. 795, this the fourth class, which paid a larger in- court held that there could be a recovery by demnity than the class from which he sought an intended beneficiary where there had been to transfer. He took this action in March, an ineffectual effort to have such person 1889, and died on May 5, 1892, without havs named as the beneficiary in the certificate ing obtained the transfer. His beneficiaries and such change has been prevented by the brought suit to recover on the ground that wrong of the beneficiary named in the certifithe insured was equitably a member of the cate. fourth class, but the trial court sustained

Our Supreme Court, in Isgrigg v. Schooley, a demurrer to the complaint on the theory supra, made a similar holding, and on page that he was not actually a member of such 99 of 125 Ind., on page 152 of 25 N. E., said: class at the time of his death. The court by change; he did all that was

within his power

“The assured had the right to make the Gavin, J., said:

to do in compliance with the by-laws governing "Clearly. Croasdale possessed all the neces- such change; the appellee, the beneficiary namsary qualifications, complied strictly with the ed in the original certificate, prevented him requirements of appellee's constitution, and was from a formal compliance in the delivery of in fact entitled to be, and under the allegations the certificate, and equity will regard that as of the pleadings ought to have been, transferred. done, since he had the right to its possession, Appellee's position is that nevertheless he was and the right to have delivered it, but could not transferred in fact, and could not be with not do so by reason of the acts of the appellee, out the approval of the medical examiner in and equity requires no impossibilities." chief, and for this reason his beneficiaries can

We therefore conclude that the averments not recover. It is further contended that he bad, by not asserting his legal right to the are sufficient to avoid the defense above intransfer and not tendering the dues, acquiesced dicated and to warrant the maintenance of and abandoned his right to the transfer. the suit by appellees.

“The constitution and by-laws of such an organization are elements of the contract of in

(5] The averments show that the fire oc

curred on August 29th, and that due proof "Under the averments, the action of the med. thereof was furnished appellant on October ical examiner in chief, in rejecting the applica- 7th, or 39 days after the fire. Both the stattion solely by reason of Croasdale's age, was in direct violation of the constitution.

ute (Acts 1911, p. 525) and the provisions of Having done everything that was to be done by the policy require proof of loss to be made




« PreviousContinue »