Eminent Household of Columbian Woodmen v. Matlock

• Decision Date: 17 May 1920
• Docket Number: 407
• Citation: 221 S.W. 858,144 Ark. 126
• Parties: EMINENT HOUSEHOLD OF COLUMBIAN WOODMEN v. MATLOCK
• Court: Arkansas Supreme Court

221 S.W. 858

144 Ark. 126

EMINENT HOUSEHOLD OF COLUMBIAN WOODMEN v. MATLOCK

No. 407

Supreme Court of Arkansas

May 17, 1920

Appeal from Dallas Circuit Court; Turner Butler, Judge; affirmed.

Judgment affirmed.

R. W Wilson and C. H. Moses, for appellant.

1. The policy was void ab initio because of false warranties and material misrepresentations. 58 Ark. 528; 72 Id 620; 84 Id., Fid. Ins. Co. v. Beck; 90 Ark. 264; 96 Id. 499; 104 Id. 538; 120 Id. 605; 135 Id. 65.

2. The case should be reversed for a new trial. It was positively proved and undisputed that Doctor Matlock was a continuous user of intoxicating liquors. It was error to exclude the coroner's verdict; it was competent evidence for the jury. 93 Ark. 209; 92 N.W. 1104; 181 U.S. 49; 126 Ark. 483 113 S.W. 695; 141 Id. 936; 175 Id. 266; 70 N.E. 1066; 90 A. 73.

3. The court erred in giving and refusing instructions. "Suicide sane or insane" was inserted in the policy for the purpose of avoiding liability for all kinds of suicide, regardless whether or not the self-destruction was voluntary and intentional, or the result of insane impulse, or mental aberration over which the insured had no control. 78 N.E. 488; Vance on Ins., p. 522; Elliott on Ins., 368. Our construction or these "suicide" or "self-destruction" clauses has been long sustained by the courts. 93 U.S. 286; 42 N.W. 156; 41 A. 351; 57 P. 936; 39 N.W. 658; 88 Id. 687; 127 U.S. 661. The constitution and by-laws of a fraternal benefit association form a part of the contract (81 Ark. 512), and one binding as part of the contract. 105 Ark. 140-146; 52 Id. 202; 55 Id. 210; 81 Id. 512; 104 Id. 538; 135 Id. 65; 98 Id. 421. Instructions 3 and 4 should have been given, and it was reversible error to refuse them. 132 Ark. 63.

4. The prejudicial arguments of plaintiff's counsel call for a reversal. 117 Ark. 551; 132 Id. 455. We have a special statute controlling fraternal benefit societies, and they are exempt from the provisions of the other insurance laws of our State. Act 462, Acts 1917, p. 2087; 168 S.W. 593; 196 Id. 427; 200 Id. 76.

5. At best a judgment for only $ 400 should be entered here. All the circumstances point to drunkenness and suicide. 95 Ark. 456.

Gaughan & Sifford, for appellee.

1. The policy was not void ab initio. This case is governed by 90 Ark. 264-8.

2. The covenant was not forfeited under article 15, constitution and by-laws of the order, because there is a total lack of any evidence to show that deceased used liquor to such an extent as to impair his health, and it is not shown that the excessive use of liquor caused his death, and it was not shown that article 15 was in force or effect on December 18, 1915.

3. There was no error in excluding the coroner's verdict. 191 S.W. 25.

4. There was no error in the instructions complained of. They state the law. 80 Ark. 190; 128 Id. 155; 133 Id. 176.

5. As to the prejudicial remarks of counsel, no request was made below for the court to rule on them. The record is silent as to what may have been said, or the court's ruling thereon. 103 Ark. 359; 100 Id. 437.

6. Suicide was not shown by the evidence or physical facts. 80 Ark. 190; 133 Id. 176. 95 Ark. 456, is an entirely different case from this.

OPINION

SMITH, J.

This is an action by appellee, as guardian and next friend of her infant children, against appellant, for a sum alleged to be due on a policy of insurance for $ 2,000, issued on the life of Dr. Matlock, the father of said children. Payment of said policy is resisted upon the grounds, that Dr. Matlock, the insured, had made false representations in regard to the use of intoxicating liquors when he obtained the policy sued on, and had become intemperate in the use of intoxicating liquors; and liability in any event in a greater sum than $ 400 is denied under a clause of the policy reading as follows: "I agree, for myself and beneficiary, that, in case of suicide, sane or insane, there shall be due and payable only one-fifth of the otherwise value of the covenant." The instruction submitted to the jury only the question of suicide, and there was a finding on that issue for appellee, as the verdict returned was for the full amount of the policy, and this appeal is from the judgment pronounced upon that verdict.

The policy or benefit certificate sued on was issued December 18, 1915; but this appears to have been a reissuance of a certificate dated January 10, 1910, and the certificate was reissued to include as a beneficiary the name of a baby born after the original certificate had been issued.

There is testimony to the effect that between January, 1910, and December, 1915, the insured drank liquor to excess, and it is claimed that under an article of the constitution of the society the certificate forfeited on that account, the article of the constitution referred to so providing. There is no evidence that at the time of the original application, or prior to that time, the insured used liquor to excess; and there is no evidence that any of the statements made by the insured were false.

The certificate sued on contained the following clause: "It is understood and agreed that my original application and medical examination, including answers to questions, warranties, and agreements therein contained, and which was the basis upon which the original covenant was issued, are hereby reaffirmed, and the same, and this application, shall be considered as a part of the contract under which the new covenant herein applied for, the same as though set out at length herein."

It is insisted that as the insured had become addicted to the use of intoxicating liquors at the time the certificate sued on was issued the policy lapsed on that account. But the case of Supreme Lodge Knights of Pythias v. Davis, 90 Ark. 264, 119 S.W. 257, is against that insistence. The question here raised was there decided, and the court said that the warranty contained in the last certificate referred to the use of liquors at the time the original certificate issued.

It is contended that the policy forfeited under article 15 of the constitution of the society. This article provides that if the guest or beneficiary holding a certificate shall become intemperate in the use of liquor to such an extent as to impair his health, the certificate shall be void and of no effect. This insistence appears to be fully answered by the reply made that there is a total lack of any testimony which shows the use of liquor on the part of the deceased to an extent which would impair the insured's health.

It is next insisted that error was committed by the court on the trial below in refusing to admit in evidence the verdict of the coroner's jury of inquest, which reflected a finding by the jury that the insured had committed suicide. This question was presented to and decided by this court in the case of American Nat. Life Ins. Co. v. White, 126 Ark. 483, 191 S.W. 25, where we held that the coroner's verdict was inadmissible in cases where the contract of insurance itself did not provide that it should be admitted; and the certificate here sued on contained no such provision.

It is next insisted that error was committed in giving over appellant's objection the following instruction:

"(B) The jury are instructed that, though you should find from the evidence that deceased, Dr. Matlock, came to his death from a gunshot wound, and that, at the time of the shooting, he held the gun in his hand, this of itself is not sufficient to warrant you in finding for the defendant, unless you further find from the greater weight of evidence that the gun was fired voluntarily by the deceased with the intention of inflicting upon himself the injury, and was not the result of accident."

The objection to this instruction is that it virtually eliminates from the case the question of the insured's sanity whereas the policy provides for the payment of only one-fifth the sum otherwise due if the insured should commit suicide, whether sane or insane. But no objection to that effect was made at the trial below; and it is apparent that the court was not attempting to distinguish between a sane and an insane act, but between a voluntary act and an accident, and as thus interpreted the instruction finds full support in the case of Grand Lodge A. O. U. W. v. Banister,...