Opinion
No. 14480.
March 27, 1933.
Appeal from Civil District Court, Parish of Orleans; Walter L. Gleason, Judge.
Action by Mrs. Ernestine Flowers, widow of William Johnson, against the Grand Lodge of Knights of Pythias, etc. (Colored). From a judgment for plaintiff, defendant appeals.
Affirmed.
Frank B. Smith, of New Orleans, for appellant.
John T. Charbonnet, of New Orleans, for appellee.
Plaintiff claims as beneficiary of a deceased member of defendant, Grand Lodge, Knights of Pythias, State of Louisiana, Jurisdiction of North America, South America, Europe, Asia, Afrlca, and Australia (Colored). She seeks to recover the face amount of a policy issued to deceased in which she was named as beneficiary, and she also asks for such burial benefit as is provided therein. The amount claimed is not disputed, nor is it denied that plaintiff is entitled to the benefits provided in the policy, but payment is resisted on the ground that "under the law of defendant institution, as amended on April 20, 1931, payments are to be made by the Grand Chancellor ninety (90) days or more after date of filing claim, or such time as there may be sufficient funds in the Endowment Department to pay the claims in the order in which they are filed in the office of the Grand Chancellor." No evidence was submitted by defendant in an attempt to establish the defense that there are not on hand sufficient funds in the endowment department to pay the claim. The failure to offer such evidence, if, in fact, any is available, resulted from the mistaken idea that the burden was upon plaintiff to prove that such funds are available.
We believe, however, since the policy contains an absolute obligation to pay in accordance with the by-laws and since the by-laws provide, in effect, that payment will be made unless no funds are available, that the burden of showing absence of funds is upon defendant because this is a special defense. Since defendant has not sustained this burden, it follows that the judgment appealed from is correct.
For the reasons assigned, it is ordered, adjudged, and decreed that the judgment appealed from be, and it is hereby, affirmed.
Affirmed.