
    AARON ROSENTHAL v. SUPREME RULING OF THE FRATERNAL MYSTIC CIRCLE.
    
    April 23, 1915.
    Nos. 19,052-(29).
    Mutual benefit insurance.
    In this action to recover on a beneficiary certificate it is held:
    
    (1) There was no departure in pleading.
    (2) The court did not err in admitting certain evidence.
    (3) The verdict is sustained by the evidence.
    (4) An allegation of the reply construed and held not to be an admission that the insured had failed to pay assessments and .dues.
    (5) The verdict is not excessive in amount.
    Action in the district court for Ramsey county to recover $1,000 upon defendant’s benefit certificate upon the life of Rosa Rosenthal. The case was tried before Olin B. Lewis, J., who when plaintiff rested denied defendant’s motion to dismiss the action, and a jury which returned a verdict for $791.96. From an order denying its motion for judgment notwithstanding the verdict or for a new trial, defendant appealed.
    Affirmed.
    
      Keller & Loomis, for appellant.
    
      A. J. Hertz and James E. Markham, for respondent.
    
      
       Reported in 152 N. W. 404.
    
   Bunn, J.

This action is to recover on a beneficiary certificate issued in February, 1906, by tbe American Guild to plaintiff’s mother, Eosa Eosenthal,’ insuring ber life for tbe benefit of ber son, tbe plaintiff herein, in tbe sum of $1,000. In May, 1907, defendant, a fraternal benefit society, assumed tbe obligations of tbe American Guild to its members, “took over” its membership, and issued to plaintiff a certificate obligating itself to carry out the certificate issued by the American Guild upon the same conditions and terms.

The complaint alleged tbe foregoing facts, the death of Eosa Eosenthal, notice thereof to defendant, and a denial of liability and refusal to pay. Tbe answer admitted tbe issuance of the certificate by tbe American Guild, the assumption of its obligations by defendant and tbe death of the insured. It set up two defenses; (1) Fraudulent misrepresentation as to the age of the insured made in ber application; (2) that the insured paid no assessments or dues after March, 1908, by reason whereof ber certificate lapsed April SO, 1908, under tbe constitution, laws and rules of the American Guild and of defendant. In addition tbe answer set forth the certificate, from which it appeared that the amount of the insurance was “a sum not exceeding $1,000, less tbe amount to be deducted for unexpired life expectancy of said member, as authorized by and in accordance with tbe constitution and laws of tbe American Guild in force at tbe time of death.” The reply, in addition to a general denial, contained these words:

“Plaintiff admits that the rules and laws of tbe defendant require of its beneficiary members tbe payment of certain assessments by way of insurance premiums, and alleges that Eosa Eosenthal during ber membership in said respective orders, and up to tbe time of ber death, was ready, able and willing to pay all such assessments, and in fact did pay all assessments which tbe defendant herein required or permitted her to pay, and tbe defendant waived tbe payment of any other and further assessments or dries than those actually paid by her.”

On tbe trial, it being announced by defendant that it made no •question of tbe failure to furnish proofs of death, plaintiff rested. Defendant moved to dismiss on the ground that plaintiff bad not proved tbe payment of dues and assessments, or any excuse for tbe nonpayment. The motion was denied, and defendant proceeded to offer evidence in support of its defense of fraud. It offered no evidence whatever as to the failure to pay assessments or dues. At the close of the evidence the court denied defendant’s motion to direct a verdict, and submitted the case to the jury on the issue of fraud or misrepresentation of the age of the insured, instructing in substance that defendant was entitled to recover if there was fraud or misrep- . resentation, but otherwise that plaintiff was entitled to a verdict for $1,000, less one assessment for $1.32 per month for every month of the expectancy of the insured’s life, which was stated to be 182 months, making the amount to be deducted $240.24. The jury returned a verdict for plaintiff in the sum of $791.96. Defendant moved in the alternative for judgment notwithstanding the verdict or for a new trial and appealed from an order denying such motion.

The grounds urged for reversal are: (1) That there was a departure in pleading; (2) that the court erred in admitting certain evidence as to the age of the insured; (3) that the verdict is not sustained by the evidence; (4) that the reply admitted the allegations of the answer as to nonpayment of assessments and dues; (5) that the verdict is excessive, because of errors in the court’s instruction that the monthly assessments were $1.32.

There was no departure in pleading that called for a dismissal of the case. It was not necessary for plaintiff to plead in the complaint that all assessments and dues had been -paid. This was a matter of defense and the burden rested with defendant. The reply is in no proper sense a departure.

We find no error in permitting plaintiff to testify to the “family tradition” as to the age of his mother when she died.

The question of the age of Eosa Eosenthal was the pivotal one in the case. We have examined the evidence and find it conflicting,, but sufficient to support the verdict.

Defendant relies chiefly upon its contention that the reply admitted the nonpayment of assessments and dues, and therefore that it was entitled to a verdict. We have stated the allegations of the reply which are claimed to constitute the admission, and are unable to agree with defendant. It was competent for plaintiff to deny the ■nonpayment of assessments,, and also to allege that if any were not paid, defendant had waived nonpayment. We think that the reply did not relieve defendant from the necessity of proving the allegations •of its answer. It made no attempt to do so, and, as it had the burden of proof, the court correctly ruled that this defense was not in the case.

Defendant claims that the “unexpired expectancy” of the life of the insured should have been allowed on the basis of $2.05 per month, instead of $1.32 per month. It is claimed that the former sum was the amount of the monthly assessment insured was obligated to pay at the time of her death. The assessments that plaintiff paid in her lifetime were $1.32 each month, and we fail to find evidence that supports defendant’s claim that it was entitled to receive $2.05 per month from the insured.

Order affirmed.  