(24 Ind. App. 552)

CITY OF KOKOMO et al. v. BORING. (Appellate Court of Indiana. April 26. 1900.) MUNICIPAL CORPORATIONS DEFECTIVE STREETS-INJURIES-SPECIAL FINDINGS GENERAL VERDICT.

In an action for injuries, the jury specially found that plaintiff drove a sprinkling wagon onto the platform of scales in a city street, which gave way and precipitated him into the excavation beneath, causing his injuries; that there was plenty of room outside of the scales for the passage of wagons, and plaintiff voluntarily drove onto the platform; that there was nothing in the appearance of the platform to indicate that it was dangerous, and the public frequently drove on and across the platform, in traveling the street. Held, that since plaintiff knew of no defect in the scales, and there was nothing in their outside appearance to indicate that it was weak, the special findings were not so irreconcilably in conflict with a general verdict in favor of plaintiff as to warrant a judg ment in favor of defendant notwithstanding the general verdict, on the theory that plaintiff had assumed the risk.

Appeal from superior court, Howard county.

Action for injuries by Elijah W. Boring against the city of Kokomo and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Blacklidge, Shirley & Wolf, for appellants. Kirkpatrick, Morrison & McReynolds, for appellee.

ROBINSON, J. Action to recover damages for a personal injury. Appellee was driving a street-sprinkling wagon on one of appellant's streets, in which were some platform scales. In driving upon this platform, it broke, and overturned the wagon; throwing appellee to the ground, and injuring him. Complaint in two paragraphs. Demurrer to each overruled. Answer of general denial. Jury returned a general verdict for appellee, and also answers to interrogatories. Appellants' motion for judgment on the answers to interrogatories notwithstanding the general verdict was overruled, and this ruling is the only error assigned which is discussed. It is conceded that to permit the platform scales to be and remain in the street is negligence, and a reversal is asked upon the ground that by the answers to interrogatories it is shown that appellee assumed the risk when he drove upon the platform of the scales.

High street, in appellant city, runs east and west. The south line of the platform scales is 3 feet from the south curb line. The platform, which covers an excavation 2 or 3 feet deep, is 15 feet long east and west, and 8 feet 4 inches wide, and is within a wooden framework, level with the surface of the street; the platform being about 1 inch below the surface of the street and the wooden frame. Between the north side of the platform and the north side of the street the street is 23 feet wide, unobstructed, and safe

for heavily loaded wagons. Appellee's eyesight was good, and the accident happened about 8 o'clock in the forenoon of April 13th. The scales were a material obstruction to travel on the street. Appellee knew of their existence and location at the time, and of the 1-inch depression of the platform. He voluntarily and purposely drove upon them. He could have avoided driving upon them by driving near the center or north side of the street, where there was ample and sufficient unobstructed space in a reasonably smooth and safe condition for driving a loaded wagon. It is argued that these facts show that appellee assumed the risk when he drove upon the scales. There is a further finding that appellee's wagon, a short time before this accident, had broken down a similar pair of scales a short distance from the scales in question, of which fact appellee knew. But this fact, of itself, lends no aid, in the absence of some showing as to the same or similar conditions existing at the time of both events. We cannot agree with counsel that an abrupt descent of 1 inch from the surrounding framework to the level of the platform was of itself a condition such as to warn appellee of the danger. That fact of itself was not notice that it was unsafe. The platform was in and a part of the street, and was so used by the public generally. The 1-inch depression did not of itself overturn the wagon. That which was in fact a part of the surface of the street gave way. A defective sill under the platform, of which defect appellee had no knowledge, broke. There was nothing in the outside appearance of the platform to indicate that the sill was weak. It is not shown that he was making any extraordinary use of the street. It is true that he purposely drove upon the platform, but the jury say that it was necessary in order to sprinkle the street to the south gutter. Aside from the depression of 1 inch, there was nothing in the appearance of the platform to attract attention, and there was nothing in its appearance to suggest that it would be dangerous to drive upon it. The street at that point was a much-traveled street, and the public frequently drove on and across the platform, in traveling the street. Appellee, in the absence of knowledge, had the right to act upon the presumption that the platform, being in and a part of the street, was safe for the purposes for which the public ordinarily used the street. Appellee drove where he had a right to drive. He was at the time making a lawful use of a public street. He had no knowledge of any danger. There was nothing to warn him of any danger. He was not required to anticipate that the platform, as a part of the street, was maintained in an unsafe condition. It is not necessary to cite authorities to the effect that no presumptions are indulged in favor of answers to interrogatories, and that they

cannot overthrow the general verdict unless they are in irreconcilable conflict with it, upon some essential element necessarily found by the general verdict. All doubts are resolved in favor of the general verdict, and if, with the facts specially found, other facts could have been found under the issues which would harmonize the facts specially found with the general verdict, the latter must stand. While the platform in the street was, in a sense, an unlawful obstruc tion, yet it was not an obstruction which in and of itself impeded or obstructed appellee's passage. Had the condition of the thing itself remained unchanged, no accident would have happened. As appellee saw it, it presented no obstruction, because, in its apparent condition, it could be passed over safely. Its existence in the street may have been unlawful, or it may have been a nuisance, but that did not necessarily make it dangerous. He knew of the existence of the thing itself, but he did not know that it was dangerous. There was nothing to suggest danger. A post, a ditch, a bank in a street, are obstructions. They, in and of themselves, and in their condition, suggest danger. They are visible defects, which in and of themselves obstruct the passage. Thus, in Turnpike Co. v. Baldwin, 57 Ind. 86, appellee drove into a hole in a turnpike, with notice of the defect. In Bruker v. Town of Covington, 69 Ind. 33, appellant, knowing of the existence of an open cellarway in the sidewalk, attempted to pass it in the night. In Town of Gosport v. Evans, 112 Ind. 133, 13 N. E. 256, appellee know of the defect, and, while attempting to pass over the place in the nighttime, struck her foot against a brick which projected above the surface of the walk. In City of Indianapolis v. Cook, 99 Ind. 10, appellee had knowledge of the obstruction, which consisted of a water box in the sidewalk, about 14 inches above the surface. In Weinstein v. City of Terre Haute, 147 Ind. 556, 46 N. E. 1004, appellant drove against a hitching post 3 feet high. In the above cases the thing itself was an obstruction, and caused the injury in the condition in which it was encountered. The thing itself suggested the danger. The rule as to assumption of risk in such cases is not applicable in the case at bar. The difference between these cases and the case at bar is like that which exists between an open, exposed excavation, and one apparently safely covered and protected. As we construe the answers, there is nothing in them in conflict with the finding of the general verdict that appellee, in driving upon the platform, did what a reasonably prudent man would have done under like circumstances. There is nothing in the answers to show that appellee attempted to pass over a place in the street obviously dangerous, or which he knew was dangerous.

The motion for judgment on the answers was properly overruled. Judgment affirmed.

1. Where defendant assigned the action of the trial court in overruling a demurrer to a paragraph of the complaint as error, but failed to specify on appeal wherein the paragraph was defective, the assignment will not be considered.

2. To present the ruling of the trial court on a motion to strike out a pleading, or a part thereof, for review on appeal, the pleading, or the part in question, must be brought into the record by a bill of exceptions.

3. The by-laws of a beneficial society, which were part of the contract of insurance between it and its members, provided that, if a member should engage in any occupation prohibited by the by-laws, among which was the sale of liquor, his certificate should become void from the date of his engaging in such occupation, without any action on the part of the officers of the society, and that the receipt of an assessment from such member after his engaging in a prohibited occupation should not be a waiver of the condition. Held, that where a member engaged in the sale of liquor, which fact was known to the local authority to whom he paid his dues, and the society retained and received the last assessment with notice of the fact that the member died while engaged in the sale of liquor, the society, in an action on the certificate, was estopped from asserting that the certificate was forfeited.

4. Where the by-laws of a beneficial association, which were a part of the contract of insurance between the society and the member, provided that any member who should engage in the sale of liquor should, from the date of engaging in such occupation. stand suspended, and the society, on the death of a member, had knowledge that he was engaged in the sale of liquor at the time of his death, but sent blanks to the beneficiary for proofs of death, it was thereby estopped from asserting that the certificate was forfeited.

Appeal from circuit court, Marion county; Henry Clay Allen, Judge.

Action by Sarah Volkert against the Supreme Tent of the Knights of Maccabees of the World. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Miller & Elam, for appellant. Finch & Finch and Guilford A. Deitch, for appellee.

WILEY, C. J. On October 24, 1893, appellee's husband made application for membership in appellant order, and was issued a certificate of membership. By the terms of this certificate, appellee was to receive a benefit of not to exceed $1,000 upon the death of her husband. The certificate, among other things, provided that the board of directors might suspend a member from all benefits "who, after admission, engaged in occupations prohibited by the laws of the order; and the action of such board in such cases shall be final." Section 142 of the by-laws provides that, "if a member engages in the sale of intoxicating drinks," he shall be suspended from the order, without action on the part of the officers; "and the record keep1 Rehearing denied.

er, when any such suspension takes place, shall not receive further assessments from such suspended member. He shall enter such suspension on his record, and report the same to the supreme record keeper, as he would report any other suspension, giving date and cause thereof; and, in case any assessment shall be received from a member who has thus engaged in a prohibited occupation after his admission, the receipt thereof shall not continue the benefit certificate of such member in force, nor shall it be a waiver of his engaging in such prohibited occupation." Some time after appellee's husband was accepted as a member, he did engage in the saloon business, and sold intoxicating drinks, and, while so engaged, died. The officers of the local tent knew that appellee's husband was engaged in selling intoxicating drinks, and with such knowledge continued to accept his dues and assessments. Appellant's deputy supreme commander also knew that the member was so engaged. On the day appellee's husband died, a committee from the local tent called at his home, which was connected with his saloon, to take charge of the burial. This committee, on the same day, notified the chief officers of appellant of such death, and stated in the notice that he was engaged in the saloon business. At the same time they collected from the appellee an assessment, which was then due from her husband, and remitted it to the head office of appellant. Upon receipt of the notice of death, the chief officers sent blanks for making proof of death, and such proof was made, and returned by appellee. Appellant refused to pay the amount, or any amount covered by the certificate, and the appellee brought this action to enforce payment. The complaint was in three paragraphs. Appellant answered in three paragraphs, and, upon the issues being joined, there was a jury trial, resulting in a verdict for appellee. Appellant's motion for a new trial was overruled, and judgment rendered on the verdict. The errors assigned are: (1) The overruling of appellant's demurrer to the first paragraph of complaint; (2) the overruling of appellant's motion to strike out parts of the third paragraph of complaint; (3) the sustaining of appellee's motion to strike from the files the second paragraph of answer; and (4) the overruling of the motion for a new trial.

The first error assigned is waived by appellant in failing to discuss it. In Tucker v. Sellers, 130 Ind. 514, 30 N. E. 531, the court say: "The appellant's counsel have not pointed out any objections to the complaint, but say in general terms that it is not good. We must, under the long-settled rules of the court, decline to search for defects in the complaint, and assume that none exists. Counsel cannot, by general assertions in their briefs, secure a reversal of a judgment because of supposed defects in a pleading. Defects which are not apparent from a bare statement must be specifically pointed out

by counsel, and they must support their position by argument, and, if need be, by the citation of authorities." Because counsel have not attempted to point out and argue any defects in the first paragraph of complaint, we have not thought it necessary to refer to its several averments.

The second and third specifications of the assignment of error do not present any question for decision. The rule is firmly settled that, to present any question for review upon appeal on the ruling of the trial court to strike out a pleading, or a part thereof, such pleading or parts of pleading, the motion and ruling thereon, must be brought into the record by a bill of exceptions. Iddings v. Iddings, 134 Ind. 322, 33 N. E. 1101; Dudley v. Pigg, 149 Ind. 363, 48 N. E. 642; Holland v. Holland, 131 Ind. 196, 30 N. E. 1075; City of Indianapolis v. Consumers' Gas Trust Co., 140 Ind. 246, 39 N. E. 943, 27 L. R. A. 514; Smith v. State, 140 Ind. 343, 39 N. E. 1060; Owens v. Tague, 3 Ind. App. 245, 29 N. E. 784; Huggins v. Hughes, 11 Ind. App. 465, 39 N. E. 298; Bennett v. Seibert, 10 Ind. App. 369, 35 N. E. 35, 37 N. E. 1071; Fordice v. Beeman, 10 Ind. App. 295, 36 N. E. 937. Appellant has failed to comply with this rule in this instance, and hence, upon the questions arising upon such rulings, there is nothing presented for decision.

This leaves but one question for consideration, viz. the overruling of appellant's motion for a new trial. Before entering upon the discussion of this branch of the case, it may be important to briefly state the facts relied upon by appellant, as set out in its first paragraph of answer, and the facts which appear from appellee's reply. The answer alleged, in substance, that the appellant is a mutual, fraternal, beneficial society, incorporated under the laws of the state of Michigan; that the supreme tent is the highest authority in the association, and authorized to prescribe laws for its government. Subordinate to this are great camps and subordinate tents. It is further averred that the laws of the supreme tent enter into and become a part of the contract between the association and its beneficial members. The answer then sets out verbatim certain provisions of the laws governing the association, showing the manner in which it is organized, its objects, etc. And among other laws pleaded is section 142, being the one referred to in plaintiff's complaint, which mentions the classes of persons who shall not be admitted into the order. The prohibitory clause contains the following: "And no person shall be eligible for membership in the order who is engaged, either as principal, agent, or servant, in the manufacture or sale of spirituous, malt, or vinous liquors as a beverage; and, should any beneficial member of the order engage in any of the above-named prohibited occupations after his admission, his benefit certificate shall become null and void from and after the date of his so engaging

in such prohibited occupation, and he shall stand suspended from all rights to participate in the benefit funds of the order, and no action of the tent or of the supreme tent shall be a condition precedent to such suspension. The record keeper, when any such suspension takes place, shall not receive further assessments from such suspended member. He shall enter such suspension on his records, and report the same to the supreme record keeper, as he would report any other suspension, giving date and cause thereof; and, in case any assessment shall be received from a member who has thus engaged in a prohibited occupation after his admission, the receipt thereof shall not continue the benefit certificate of such member in force, nor shall it be a waiver of his engaging in such prohibited occupation." The laws set out in this paragraph also show that a regular application must be made for membership, showing, among other things, the occupation of the applicant. The laws also provide that the subordinate tent shall be the agent of the members in making application for membership, the collection and transmission of dues and assessments, the serving of notices and the like. The answer then proceeds to aver that the decessed, Thomas H. Powell, applied for membership on the 21st day of September, 1893, through the Indianapolis Tent No. 35, organized as a subordinate tent in the city of Indianapolis; that said application was in writing, signed by the appellant, upon a blank form furnished for the purpose; and that, in reliance upon the representations made in the application, the beneficial certificate was issued to the deceased. The answer then avers that the deceased engaged in the saloon business, and admits that assessments were received thereafter, but without knowledge on the part of the association that he was so engaged, and that the association had no such knowledge until after his death. It is then averred that the association is ready and willing to return to the appellee the assessments received, and the amount thereof is brought into court for her use and benefit. With this paragraph of answer was filed as an exhibit the written application of the insured for membership. By this application, it is disclosed that the applicant's occupation was that of a bookkeeper, and in it he also states that he was never engaged in the sale or manufacture of intoxicating liquors. The paragraph closes by averring that, by reason of the facts therein stated, all rights under the beneficial certificate were forfeited by the deceased, hav

edge of the fact, continued to recognize him as a member, and continued to levy and collect assessments and dues of him up to the time of his death; that on the day of his death an officer of appellant called at the saloon of decedent, then knowing it to be such, and collected and receipted for assessments and dues which he claimed to be then due; that all of said assessments so collected have been retained by appellant; that, although appellant knew he was so engaged in the saloon business, it failed and refused to suspend him, and up to his death continued to recognize him as a member in good standing. In the third paragraph of reply it is averred that an officer of the subordinate tent to which the decedent belonged, on the day he died, called at his place of business, and collected dues and assessments, and forthwith remitted the same to the appellant, and informed appellant that the said insured was dead, and that at the time of his death he was engaged in the saloon business; that, with such knowledge, appellant accepted and retained the money paid upon such assessment, and never offered to pay or tender it back. The fourth paragraph of answer is like the third, with the additional averment that, after appellant had received notice of the death of assured, as stated in the third paragraph, it sent to appellee blank forms for proof of death, which it required her to make out and be sworn to, and which she returned when completed. Appellant's motion for a new trial rested upon these reasons: (1, 2, 3) That the verdict is not sustained by sufficient evidence, and is contrary to the law and the evidence; (4) that the amount of recovery assessed by the jury is erroneous, being too large; (5, 6) that the court erred in giving and in refusing to give certain specified instructions; (7, 8) that the court erred in ad| mitting and in overruling appellant's motion to strike out certain evidence.

The first question discussed under this branch of the case is instruction No. 3 given by the court on its own motion. In this instruction the court stated to the jury that appellant, by its answer, admitted that it had knowledge that the decedent was engaged in the saloon business, immediately after his death, and that, if the jury found that on the day of his death, appellant, by an officer of the subordinate tent to which decedent belonged, collected money from appellee for an assessment or dues upon the certificate, or by reason of his membership in appellant order, and that said money was remitted to and received by appellant after it had

the saloon business; and that appellant did not tender back said money before this action was commenced, and still retained it until the commencement of the action,-then appellant would be estopped to question the validity of the certificate on the ground that decedent had violated the laws of the order in engaging in the sale of intoxicating liquors. While

worded differently, the same legal proposition is stated in the fourth instruction given by the court on its own motion as that in the third, and the two may be considered together. Complaint is made of these two instructions that they make no discriminations as to the rank and authority of the officer of appellant to whom such knowledge was communicated. The instructions proceed upon the theory that the knowledge was communicated to appellant itself. As appellant is a corporation, this, of course, implies that the knowledge was communicated to one or more of its officers. It is urged that notice to the recorder of the subordinate tent to which the decedent belonged, or to the supreme recorder, would not be notice to appellant, as they acted merely in clerical capacities. We are not called on to decide this question, for the instructions speak of notice and knowledge to appellant, and not to any officer or officers. In Association v. Beck, 77 Ind. 203, the word "void" was used in the certificate. The court held that it meant "voidable," and in deciding the case said: "The logical and necessary deduction from this doctrine is that a distinct act of affirmance of the contract by the party entitled to avoid it, made with knowledge of the tacts, and especially such acts as the demand and receipt of premiums or assessments, would constitute a waiver of the forfeiture or of the right to annul the contract, and so it is held in several cases already cited. * * * There is no reason why this waiver may not occur after as well as before the death of the person whose life was insured." In Erdmann v. Insurance Co., 44 Wis. 376, the insured member was in arrears. On the 19th of the month he gave a friend money to pay his arrears dues. On the following day he was killed, and on the same day the friend paid the money to the local lodge, which, with knowledge of the fact of such death, etc., accepted the money, and transmitted it to the supreme lodge, with a report of a committee that the money was paid after the death of the insured. The supreme lodge received and retained the money until after suit was brought on the certificate. The court said: "So it seems that the defendant, with the full knowledge of all the facts as to the time and manner of the payment of this money, accepted and retained it long after the commencement of this suit. This certainly amounted to a waiver of the forfeiture, if one had occurred (Joliffe v. Insurance Co., 39 Wis. 111); for both the lodge, which was the agent of the defendant for that purpose, received and transmitted, and the defendant itself accepted and retained, the money after notice of the death of Erdmann, and with full knowledge of all the facts relating to the payment. ** We have already said there was nothing in the charter of the defendant which rendered the doctrine of waiver inapplicable to it. We therefore hold that the legal effect of accepting and retaining the money paid on behalf of Erdmann with a full

*

knowledge of the facts operated as a waiver of the forfeiture." In the case of Warnebold V. Lodge, S3 Iowa, 23, 48 N. W. 1069, the court say: "It is claimed that, although the said Warnebold had paid all assessments for death losses up to the time of his death, yet that he had forfeited his membership in the Evening Star Lodge by failure to pay certain dues to the lodge. It is true that certain dues were past due at one time, but previous to his death these arrearages were paid to the satisfaction of the officer whose duty it was to collect dues. No action was taken by the lodge suspending Warnebold from membership because of this delinquency. So far as the records of the lodge disclosed, he was a member in good standing at the time of his death; but it claimed that by failing to pay his dues at the proper time, by the constitution of the order, he was suspended without any action being taken. This ignores all the rules of law. applying to waiver and estoppel. The doctrine that there is something so binding and sacred in a contract of insurance that waiver and estoppel have no application to them has long since been exploded. We need cite no authorities upon this point. It is too well understood to be now questioned. When the defendant and its subordinate local lodge received Warnebold's money, and adjudged that he was in good standing when he died, it is not a matter of much consequence what may be the laws or rules or regulations of the order. If any court were to hold that in an ordinary contract such acts did not constitute a waiver of all delinquencies, it would be an adjudication which would command the respect of no one; and there is no reason why a contract of insurance should be construed differently from any other contract." The case of Gray v. Association, 111 Ind. 531, 11 N. E. 477, is in point. There the defense rested upon a bylaw forbidding the issuing of a certificate to a person under 18 years of age. The assured was under that age, of which fact the company had knowledge. In deciding the case the court said: "A life insurance company organized under the laws of this state, which issues a policy to one under the age required by its by-laws merely, with knowledge of the insured's true age, or which, after obtaining such knowledge, still retains the consideration, and makes no offer to cancel the contract, is estopped to set up the matter of age as a defense to an action on the policy." In Iowa it was held that, where a benefit society issued a certificate of membership conditioned to be void if the beneficiary was not a "natural heir” of the member, and continued to collect assessments after knowledge of the fact that the beneficiary was not a natural heir, such acts on the part of the association constitute a waiver of such condition. Lindsey v. Society, 84 Iowa, 734, 50 N. W. 29. In the case of Supreme Tribe of Ben Hur v. Hall (decided by this court March 14, 1900) 56 N. E. 780, it was held that an insurance society which demands and accepts a payment of dues after the death