Sovereign Camp v. Cox , 40 Ind. App. 266 ( 1906 )

Roby, J.

This is an action upon a beneficiary certificate for $1,000, payable to appellees upon the death of James A, ■Williamson. The cause was tried by a jury, a verdict for $772.50 returned, and judgment rendered on the verdict.. The question for decision, arising upon the assignment that the court erred in overruling appellant’s motion for a new trial, is whether there is evidence tending to support the verdict.

1. Williamson died August 24, 1903. Assessments were payable monthly, and could be paid at any time during the month. If the July assessment was paid, the eertificate was in force at the time of the death. If the July assessment was not paid, then, by the terms of the certificate the same was not in force. The burden of establishing nonpayment of the assessment was upon appellant. Supreme Lodge, etc., v. Johnson (1891), 78 Ind. 110.

2. If there is evidence tending to support the verdict, this court is powerless to interfere with it, although a contrary finding might properly have been based upon the. same evidence. The distinction between the duties of a trial court and an appellate tribunal is perfectly well established, and must be respected.

3. Assessment 153 was paid by H. J. Schilling for Williamson on July 3. Assessment 152 was paid on June 19. The following question was asked Schilling and answered: “If you were acquainted with James A. Williamson, state if he was a member of your camp, and what, if anything, you know of any one, for him, paying an assessment for dues, during the month of June, 1903? A. Yes, I knew him, and paid his assessment for the month of June, 1903.” It is also in evidence that Schilling paid assessment 153 for Williamson on July 3. It is not shown that assessment 153 was the assessment for June; it is not shown but that assessment 152 was the June assessment; and it is not shown that Schilling did not pay more than one assessment for Williamson. It might be inferred from the question and answer set out that Schilling did pay the June assessment on June 19. The presumption is that the payments were made when they were due, and it can not be said that the evidence conclusively shows that the payment made on July 3 was the payment for June. Indeed the contrary inference seems the more reasonable.

The judgment is therefore affirmed.

Robinson, C. J., Black and Myers, JJ., concur. Com-stock, P. J., and Wiley, J., dissent.