Bateman v. Grand Fraternity , 18 Pa. Super. 385 ( 1901 )

Opinion by

Beaver, J.,

The affidavit of defense, which was held insufficient to prevent judgment in the court below, consists of two distinct allegations :

1. That the member of the defendant fraternity, as whose beneficiary the plaintiff claims in this suit, “ secured his membership in the defendant association by false and fraudulent representations as to and concerning his physical health, to wit: he represented and pretended that he was in perfect physical health, while in point of fact at the time he made his application for membership he well knew he was not in good health and that, if he had told the truth, he would not have been admitted to membership in the defendant association.” This is very vague and indefinite. What were the representations as to health and wherein were they untrue? The variance between the representations and the facts should have been fully and particularly set forth. It is clear that in this respect the affidavit is insufficient.

2. The plaintiff in her statement bases her claim upon the first section of the tenth article of the constitution of the defendant association, which is set out in full. The tenth section of the same article provides that “if-the frater came to his death while residing north of the fiftieth or south of the thirty-third parallel of north latitude .... without the previous consent in writing of the president, coupled with such conditions as he may have prescribed, etc., the annuity or other benefit certificate or certificates issued to him shall be absolutely null and void.” The affidavit distinctly alleges “that the said Matthew R. Bateman, without the knowledge or consent of the president of the said defendant society, removed his residence south of the thirty-third parallel of north latitude and was residing south of the said thirty-third parallel of north latitude at the time of his death on June 24,1900.” Here is a distinct statement of a fact which, if true and unexplained, must defeat the plaintiff’s claim. Why then is it not sufficient to prevent judgment? The plaintiff suggests several explanations, any one of which, if made good by proof, may be sufficient to justify a recovery, such as the addition of the residence clause in the constitution, after Bateman became a member, provided the association had no authority to make such an addition, the waiver of that clause by the association by the acceptance of dues after his removal south of the thirty-third parallel, with knowledge of the fact of removal, etc. But these answers will constitute the plaintiff’s rebuttal. The defendant was not bound to anticipate them. Taking the record as it stands, we think the defendant has stated in express terms a defense which ought to bar the entry of judgment upon the plaintiff’s statement of claim. Judgment reversed and a procedendo awarded.