Collver v. Modern Woodmen of America
| Decision Date | 14 March 1912 |
| Parties | BARBARA E. COLLVER v. MODERN WOODMEN OF AMERICA, Appellant |
| Court | Iowa Supreme Court |
Appeal from Calhoun District Court.--HON. Z. A. CHURCH, Judge.
SUIT on a fraternal beneficiary certificate. There was a directed verdict for the plaintiff and a judgment thereon. The defendant appeals.
Reversed.
Truman Plantz, Geo. G. Perrin, and J. F. Lavender, for appellant.
Hutchinson & Jacobs, for appellee.
This is a suit on a benefit certificate issued to Lewis Collver May 16, 1906. He died in October, 1908. The evidence tended to show that Collver was intoxicated when he died and that his intoxication was the cause of his death. The defendant's answer alleged as complete defenses that Collver became intemperate in the use of intoxicating liquor after the certificate had been issued to him; that his death resulted indirectly from his intemperate use of intoxicating liquor and that there were breaches of warranties made in Collver's application. In her reply the plaintiff denied generally anl alleged that the defendant knew of the habits of Collver with respect to the use of intoxicating liquor and that with such notice the defendant collected dues and assessments from him, and by so doing waived objection to his use of intoxicating liquor. Section 14 of the appellant's by-laws is as follows: "If any member of this society, heretofore or hereafter adopted shall become intemperate in the use of intoxicating liquors or in the use of drugs or narcotics or if his death shall result directly or indirectly from his intemperate use of intoxicating liquors, drugs or narcotics, then the benefit certificate held by said Neighbor shall by such acts become and be absolutely null and void, and all payments made thereon shall be thereby forfeited." Section 5 of the benefit certificate also provides that it shall become absolutely null and void if the member become intemperate in the use of intoxicating liquor, or if his death shall result directly or indirectly from the use of intoxicating liquor.
I. Collver contracted that there should be no liability on the certificate issued to him if his death resulted directly or indirectly from the use of intoxicating liquor, and, there being evidence before the jury which would have justified a finding that his death was caused by intoxication, it was error to direct a verdict for the plaintiff. Ury v. Modern Woodmen of America, 149 Iowa 706, 127 N.W. 665.
In his application for membership, Collver stated that he was a total abstainer from the use of intoxicating liquor; that he had been a total abstainer for four years; and that he had not been intoxicated for four years. He warranted his answers to be literally true, and agreed that if any answer was not literally true the certificate should be void. The certificate issued to Collver was also signed by him and it provided on the same subject as follows: "
The uncontradicted evidence shows that Collver was intoxicated in July, 1904, less than two years before the application was made and the certificate issued, and the appellant claims that the statements by Collver that he abstained entirely from the use of intoxicating liquor and had so abstained from its use for four years was false and avoided the certificate. Collver was competent to make the exact contract that we have set out, and his beneficiary is bound by the terms thereof. The defendant might also lawfully require true answers to all of the questions asked him and refuse to insure him except upon condition that he disclose the true facts relative to his use of intoxicating liquor, and the length of time he had been a total abstainer.
II. After having contracted that his statements and disclosures should be strict warranties, which, if not true, should invalidate the certificate, his beneficiary cannot question the materiality of the answers. Ross v. Brotherhood, 120 Iowa 692, 95 N.W. 207; Provident Society v. Dees, 120 Ky. 285 (86 S.W. 522); Spence v. Insurance Co., 236 Ill. 444 (86 N.E. 104, 19 L. R. A. (N. S.) 88); National Union v. Arnhorst, 74 Ill.App. 482; Baumgart v. M. W. of A., 85 Wis. 546 (55 N.W. 713); New York Life Ins. Co. v. Fletcher, 117 U.S. 519 (6 S.Ct. 837, 29 L.Ed. 934); Goddard v. Insurance Co., 108 Mass. 56 (11 Am. Rep. 307); Richardson v. Maine Ins. Co., 46 Me. 394 (74 Am. Dec. 459).
If it was true, then, that Collver was intoxicated in July, 1904, his statement that he had totally abstained from the use of intoxicating liquor for four years was false and a breach of his warranty. The answer cannot, in our judgement, be construed to mean that he had abstained from the intemperate use of liquor as urged by the appellee. The plain intent of the questions was to ascertain whether Collver used liquor at all, and, if he did not, how long he had so abstained. There is nothing in Ury v. M. W. of A., supra, contrary to the view expressed above. The evidence tended to show that Collver was intemperate in the use of intoxicating liquor for about two years before his death.
The evidence also showed that such use of liquor was known to the head officer of the local camp and to some extent, at least, to the clerk of the camp. Notwithstanding such knowledge on the part of the officers, the clerk of the local camp continued to receive dues and assessments from the insured and sent them to the defendant. The appellee contends that the defendant waived any objection to Collver's use of liquor by receiving assessments and dues with knowledge of his habits. The rule contended for by appellee would undoubtedly be applicable but for the fact that the contract before us contains provisions which have not heretofore been considered by us in discussing the question of waiver in similar cases. The cases of our own relied upon by the appellee are Alexander v. Grand Lodge, 119 Iowa 519, 93 N.W. 508; Trotter v. Grand Lodge, 132 Iowa 513, 109 N.W. 1099.
The by-laws in force when the insured became a member provided as follows:
Does the stipulation that the clerk...
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