Eminent Household of Columbian Woodmen v. Heifner

• Decision Date: 05 November 1923
• Docket Number: 225
• Citation: 255 S.W. 29,160 Ark. 624
• Parties: EMINENT HOUSEHOLD OF COLUMBIAN WOODMEN v. HEIFNER
• Court: Arkansas Supreme Court

255 S.W. 29

160 Ark. 624

EMINENT HOUSEHOLD OF COLUMBIAN WOODMEN v. HEIFNER

No. 225

Supreme Court of Arkansas

November 5, 1923

Appeal from Jefferson Circuit Court; W. B. Sorrels, Judge; affirmed.

Judgment affirmed.

Caldwell Triplett & Ross and Hamilton Moses, for appellant.

The insured engaged in a prohibited occupation which voided his certificate. This provision was contained in the constitution and by-laws of the order, which, under the holdings of this court, form a part of the contract. 81 Ark. 512; 52 Ark. 201; 104 Ark. 538; 135 Ark. 65; 145 Ark. 313; § 6076, C. & M Digest. A benefit society has the right to select the particular risks it is willing to assume. 155 S.W. 892; 230 S.W. 540; 150 Ark. 176; 138 Ark. 442. The question of waiver is not involved in the case. There must be some expressed intention to relinquish a known right, and nothing akin thereto is found in this case. 142 Ark. 156; Cooley on Ins vol. 7, § 2659. The insured, while working at a prohibited occupation, could not be in good standing, and no one had authority to accept or reinstate a member while so engaged. 167 S.W. 590; 176 S.W. 507; 157 S.W. 818. There is no question of estoppel here, since the appellant was not advised of the insured being engaged in a prohibited occupation. 40 Cyc. 256-257; 142 Ark. 157. The notice claimed to have been given was not addressed to the proper party. 150 Ark. 177. A notice deposited in the mail is ineffective unless received. 14 R. C. L. § 350; 23 Am. Rep. 697.

Rowell & Alexander, for appellee.

There is a presumption that a letter properly mailed was received by the addressee, but such presumption may be rebutted. 93 Ark. 252; 72 Ark. 305. If an insurer, after receiving knowledge of the falsity of answers in the application on which a policy is issued, continues to collect premiums, it is estopped to deny liability. 147 S.W. 882; 41 L. R. A. (N. S.) 505. For other cases distinguishing between waiver and estoppel, see the following: 142 Ark. 132; 206 S.W. 970-2; 148 Ark. 562; 111 Ark. 435; 140 Ark. 289; 127 Ark. 133; 53 Ark. 499; 151 Ark. 231; 155 Ark. 407; 168 N.W. 189. An insurance company may be estopped by the conduct of its agent. 158 Ark. 199; 79 Ark. 315; 14 R. C. L. 1166.

OPINION

SMITH, J.

During the year 1912 appellant company issued its benefit certificate for $ 3,000 to W. C. Rudder, of Harleton, Texas, in which the wife of the insured (now Mrs. Heifner) was named as beneficiary. In this application, Rudder stated his occupation to be that of "station agent."

In June and July, 1918, Rudder permitted the policy to lapse for the nonpayment of dues for those months, and during the month of July he made application for reinstatement, in which he gave his occupation as that of brakeman. Upon receipt of this application, the secretary of the appellant company wrote a letter to Rudder under date of July 12, 1918, in which Rudder was advised that, if he were a brakeman on a passenger train, he could be reinstated by paying 25 cents per thousand per month additional premium, but that, if he were a brakeman on a freight train or a mixed train, he could no longer be a policyholder in the appellant company, as brakemen on freight trains or mixed trains were excluded from membership.

On July 16, 1918, Rudder, in response to the letter from the company, renewed his application, and stated his occupation was known as "passenger brakeman," and that his duties were to "call stations, and to load and unload passengers and flagging," and upon receipt of this application and this information Rudder was reinstated.

On August 12, 1920, while running on a freight train as a freight brakeman, Rudder was killed by a tramp, and, when this fact was made to appear in the proof of death which his beneficiary sent in to the company, the company denied liability on the certificate, whereupon this suit was brought.

The constitution and by-laws of the insurance company are made a part of the contract of insurance, and by article 11, section 3, paragraph 9, of the constitution, it is provided that "if any guest, after the date of his application, shall engage in any hazardous occupation or employment classed as prohibited risk, or in like hazardous occupation or employment, or if any member shall engage in hazardous undertaking without having first obtained the written consent of the society, his beneficiary certificate shall thereby become and be forfeited and void."

By another paragraph of the constitution it is provided that "if any guest shall fail to give notice of a change of occupation to a grade for which a higher rate is required within thirty days after such change, such failure shall forthwith cause a forfeiture of the covenants held by such guest, and his membership and all rights and benefits in the society shall cease."

Another article of the constitution names the prohibited risks, and that of brakeman on a freight train or a mixed train is included among them.

At the trial from which this appeal comes, Mrs. Heifner, the insured's widow and beneficiary, testified that, after receiving the letter from the company, and after answering it as stated above, she and her husband discussed the matter and the reply that had been made, and that she wrote the company advising that she was the beneficiary under the certificate and was paying the monthly dues out of her own earnings, and that her husband was only an extra man and...