Chambers v. Great State Council, I.O.R.M.
| Decision Date | 21 September 1915 |
| Docket Number | 2800. |
| Parties | CHAMBERS v. GREAT STATE COUNCIL, I. O. R. M. |
| Court | West Virginia Supreme Court |
Submitted September 1, 1915.
Syllabus by the Court.
The assignment indorsed on the policy of insurance sued on in this case is not testamentary in character, and for that reason void, as evidence of plaintiff's title to the policy.
A creditor has an insurable interest in the life of his debtor and the assignment by the latter to the former of a policy or certificate of insurance in a fraternal insurance society, in consideration of initiation fees and dues paid thereon, and other loans and advancements made to the insured, does not convert the policy into a wagering contract, void as against public policy.
This rule of insurable interest is applicable alike to ordinary life insurance policies and to contracts of mutual benefit societies, unless there be something in the contract constitution or by-laws of the society, or statute law controlling the same, prohibiting it.
There is nothing in the contract sued on in this case or in the constitution or by-laws of defendant, nor in the statute law controlling its organization, prohibiting such assignment or change of beneficiaries.
The record book of an officer of such fraternal insurance society, which by the terms of the contract is made prima facie evidence of the financial standing of the member and of the standing of his local lodge or tribe, the entries in which were duly proven by such officer to have been made with his knowledge and under his direction in his office, by his private secretary or assistant, is admissible in evidence although the entry of the items therein be not also proven by such private secretary or assistant.
The provisions of the constitution and by-laws of such fraternal society, as to the duties of certain committees and boards constituted thereby, constitute the best evidence thereof and it is not error to reject oral evidence of witnesses as to what such provisions are.
Instructions to the jury which are too general in their terms, and are indefinite and uncertain in their application, and which ignore important issues and facts in the case on which the case may turn, are properly rejected.
Where waiver of the terms, conditions and warranties in a policy of insurance, limiting right of recovery thereon, is relied upon, the burden of proving such waiver is upon him who affirms the fact of waiver, and the same must be made out by clear and preponderating evidence.
Error to Circuit Court, Fayette County.
Action by William Chambers, assignee, etc., against the Great State Council, Independent Order of Red Men. Judgment for plaintiff, and defendant brings error. Reversed, and new trial awarded.
J. M. Ellis, of Oak Hill, and E. R. French, of Fayetteville, for plaintiff in error.
Dillon & Nuckolls and T. L. Sweeney, all of Fayetteville, for defendant in error.
Plaintiff, as assignee of Glover, sued defendant for the amount of the alleged death benefits accrued under a policy or certificate of membership issued to Glover by defendant, a fraternal insurance corporation, on July 6, 1908.
The original policy sued on was partially burned so that the words and letters at the ends of some of the lines could not be read or deciphered, but enough appears on the paper which, read in connection with the constitution and by-laws, introduced in evidence, and other evidence, substantially proves the contract. It provides in substance and effect, that in consideration of the compliance by Glover with the laws governing the endowment bureau of defendant and his good standing as a member of Standing Rock Tribe, No. 29, at Lanark, defendant agreed to pay, within ninety days after receipt of satisfactory proof of death of said Glover, to the widow of the said Glover, or to his heirs, if living, if not living then to his executors or administrators, as follows: In case of his death during the first year, $50.00; in case of his death during the second year, $100.00; and in case of his death during the third year, $150.00. And it is specifically stipulated in this contract that the records in the office of the Chief of Records should be prima facie evidence of the good standing of said Glover and of his subordinate tribe at the time of his death.
The provisions of the constitution and by-laws pertinent to the questions presented are as follows: First, the declaration that by authority of the Great Council of the United States the State Council "hereby creates an Endowment Bureau for the benefit of the families or persons designated by deceased chiefs in good standing in this Order," upon the conditions among others: (a) That all members admitted to a local tribe, and as soon as raised to the rank of chief, shall be entitled to a policy, and upon the payment of fifty cents to the Great Chief of Records, shall receive a policy properly made out and signed by the Great Sachem and Great Chief of Records, &c., and that the tribe shall be required to pay for the policies issued to its members fifty cents each; (b) that every chief (member) in the order shall pay to the endowment bureau, through his tribe, twenty cents per month, in addition to his regular monthly dues; (c) that upon satisfactory proof of the death of a chief (member) in good standing, to be furnished on blanks provided by the State Council, the Great Chief of Records shall draw an order on the Great Keeper of Wampum, signed by the Great Sachem, within ninety days, for the amount to which the beneficiary of such deceased member is entitled by the terms of the policy and the constitution and by-laws, the by-law specifically providing that such sums shall be "payable to the widow or the legal heir of the deceased"; (d) that it shall be the duty of each tribe, within fifteen suns after the beginning of each Cold Moon, Plant Moon, Buck Moon, and Traveling Moon to forward the amount of wampum due the endowment bureau to the Great Chief of Records, who shall record the same, and forthwith pay over the amount thereof to the Great Keeper of Wampum, taking his receipt therefor, and that he shall furnish to the finance committee every three moons a statement showing the quarter for which such wampum is paid, the names and members of the tribe paying the same, and the amount paid by each tribe, and shall also furnish each tribe with a quarterly statement of the Endowment Fund; (e) that any tribe failing to forward the amount due from it to the Endowment Bureau within the specified time shall be immediately notified by the Great Chief of Records, and unless such endowment dues are paid within ten days from the date of mailing such notice the tribe so notified and remaining in default shall be suspended from all benefits under the endowment bureau by the Great Sachem, but may be reinstated by him at any time upon payment of all dues, provided that should a tribe lose by death a member while so suspended, such member shall not be entitled to receive the benefits of the endowment laws; (f) that proof of death shall consist of affidavits of the fact of death, sworn to by attending physician, the undertaker, and one member of the tribe in good standing, of which deceased was a member, and certified by the Sachem and Chief of Records, and further by an officer authorized to administer oaths.
An advisory board is also provided for, to consist of not less than seven members, of which a majority shall be located at the home office, to be appointed by the Great Sachem at each Council meeting of the State, and of which the Great Sachem shall be exofficio chairman and the Great Chief of Records and the Great Keeper of Wampum, shall be ex-officio members of said board, and which board, it is provided, shall have jurisdiction in all matters pertaining to the endowment department, with power to change the amounts of such endowment, the endowment fee, and to make any levy or assessment necessary to the payment of the face value of the policies held by legal beneficiaries, provided, that the action of said advisory board shall not go into effect until approved by the Great State Council.
Besides the general plea of non assumpsit, the following breaches of the warranties and conditions of the policy sued on and of the terms and provisions thereof and of the constitution and by-laws, are pleaded and relied on by way of defense to the action, viz.: First, that the deceased Glover was not at the time of his death a member in good standing in his tribe, because of his failure to pay through his local tribe, or otherwise, to the endowment bureau, the sums specified for his endowment dues, accrued subsequently to the quarter ending April 1, 1912; second, that deceased and his local tribe had failed, neglected and refused to comply with said by-laws by paying the endowment dues of deceased and others to said Chief of Records, accruing subsequent to April 1, 1912, and that after the ten days notice to said tribe, as provided by the by-laws, and before the death of said Glover, it had been suspended, and said Glover had not been transferred to another tribe in good standing, thereby denying to deceased any and all benefits of said endowment bureau; third, that due and sufficient notice and proofs of decedent's death were not furnished to defendant as required by policy and by-laws of the order; and, fourth, that plaintiff, as assignee, is not a person within the meaning of the contract, and the constitution and by-laws of said order, who is entitled to the benefits of said endowment fund, by assignment of said Glover or otherwise.
To all these special defenses the plaintiff specially replied denying the facts pleaded in some of them, and as to all alleging that def...
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