Taylor v. Modern Woodmen of America

Citations

• 72 Kan. 443
• 83 P. 1099
• 1905 Kan. LEXIS 372

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraternal Insurance — By-law—Intemperance—Benefit Certificate — Forfeiture. A by-law of a fraternal insurance society which provides that if any member “heretofore or hereafter adopted” shall become intemperate in the use of drugs the benefit certificate held by such member shall by such acts become and be absolutely null and void as to benefits, and all payments made thereon shall be thereby forfeited, does not apply to the case of a member who prior to the enactment of such by-law had become intemperate in the use of drugs and continued so thereafter.</p> <p>2. Practice, District Court — Action on Benefit Certificate— Answer and Proof — Variance. Where, in an action upon a benefit certificate issued by a fraternal insurance society, the answer sets up as a defense a ruling of the clerk of the local camp refusing an assessment on certain grounds, and that no appeal as provided by the by-laws of the society was taken, and upon the trial the evidence shows a refusal of the clerk to receive the assessment on the ground that the beneficiary had been suspended by the camp for another and different reason, there is a fatal variance between the answer and the proof as to this defense.</p> <p>3. -Direction of Verdict — Conflicting Evidence — Question for a Jury. Where plaintiff proves a prima facie case, and defendant introduces testimony that raises a conflict in the evidence, it is error for the court to direct a verdict against plaintiff, notwithstanding there may be some issues upon which the only positive testimony is that introduced by defendant. It is for the jury to determine the credibility of the witnesses and the weight of the testimony.</p>