Brotherhood of Locomotive Firemen And Enginemen v. Cravens

• Decision Date: 15 June 1914
• Docket Number: 42
• Citation: 168 S.W. 1073,113 Ark. 400
• Parties: BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN v. CRAVENS
• Court: Arkansas Supreme Court

168 S.W. 1073

113 Ark. 400

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN v. CRAVENS

No. 42

Supreme Court of Arkansas

June 15, 1914

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; affirmed.

STATEMENT BY THE COURT.

W. E Cole was a member of the order of Brotherhood of Locomotive Firemen and Enginemen (the appellant), a fraternal organization doing business in this State on a lodge basis and maintained by the assessment of its members. W. E. Cole held a benefit certificate or policy for $ 1,500, which at his death was payable to J. C. Moss, a half-brother. A clause of the constitution and by-laws of the order provides "If a beneficiary member in good standing shall become afflicted with consumption of the lungs in its last stage he shall be entitled to the amount of his benefit certificate. Cole in his lifetime sued the appellant, setting up his certificate and alleging that he was afflicted with consumption of the lungs in its last stage, and under the constitution, that he was entitled to be paid the amount of his certificate, he having complied with the by-laws of the order in furnishing proof of his affliction. The answer admitted that Cole was a member of the order and held a certificate as alleged, but alleged that it did not know whether Cole was suffering with consumption of the lungs in its last stage, and called for strict proof thereof. It set up by way of affirmative defense that the application to become a member contained this question: "Do you use wine, spirituous or malted liquors?" and that Cole answered it "No." That the answer under the terms of the application, which was a part of the certificate, and of the contract under which Cole was insured, was made an express warranty; that the answer given was material and was false in that Cole was and had been for some time an habitual drinker, and that if afflicted with consumption as alleged, it was brought on by his habitual excessive use of intoxicating liquors. Upon these issues the cause was heard in the circuit court the first time, and on appeal to this court the judgment was reversed and the cause remanded for new trial. See, Brotherhood Locomotive Firemen and Eng. v. Cole, 108 Ark. 527. Cole died before the second trial, and the cause was revived in the name of Ben Cravens, special administrator. The appellant moved the court to have J. C. Moss made a party, setting up that he was the sole beneficiary of the policy since the death of Cole, and was threatening to sue appellant thereon. The court overruled this motion. The cause was sent to the jury. The testimony showed that Cole, before this suit was instituted, had consumption of the lungs in its last stage. The trial resulted in a verdict and judgment for the estate, and this appeal has been duly prosecuted.

Judgment affirmed.

W. S. Chastain, for appellant.

1. The refusal to make Moss, the beneficiary, a party to the suit was reversible error. The statute is mandatory and can not be ignored. Kirby's Dig., § 6011; 74 Ark. 54, and cases cited. Cole died before he acquired a vested right. When the case was reversed on former appeal, the matter stood as though no judgment had ever been rendered, and no final judgment had been rendered at the time of his death. 47 Ark. 359.

2. There is no evidence of substantive force sufficient to sustain the verdict. The testimony of five witnesses establishes the fact that Cole was a habitual and customary user of intoxicating liquor, and the probative force of the testimony of those disinterested is so great that it is not weakened by the testimony of Cole himself (there is no other evidence contradicting them), the effect of whose testimony was an admission that he was a customary, as well as an occasional, user of intoxicants. The court should have directed a verdict for appellant. 32 Ark. Law Rep. 663; 26 Id. 257.

Cravens & Cravens, for appellee.

1. "The constitution and by-laws of a fraternal order become a part of the contract insuring its members, and, if not inconsistent with the terms of the certificate, will be binding as part of the contract." 105 Ark. 140.

The constitution of appellant provides that when a member becomes afflicted with consumption in its last stages, he shall be entitled to the amount of his beneficiary certificate. Availing himself of this provision of the constitution of the order, Cole demanded, and pressed his suit, for the amount of the certificate up to the time he died; therefore, the amount of the policy belongs to his estate, and the court did not err in refusing to make Moss a party to the suit. 97 Ark. 50; 91 Ark. 377; Kirby's Dig., § 6298. Moss had no vested interest in the benefits under Cole's policy. 96 Ark. 154. See, also, 97 Ark. 425.

2. There is legally sufficient evidence to sustain the verdict. This court will not disturb a jury's verdict, unless it is...