Eminent Household of Columbian Woodmen v. Howle

• Decision Date: 28 October 1918
• Docket Number: 200
• Parties: EMINENT HOUSEHOLD OF COLUMBIAN WOODMEN v. HOWLE
• Court: Arkansas Supreme Court

206 S.W. 147

136 Ark. 156

EMINENT HOUSEHOLD OF COLUMBIAN WOODMEN v. HOWLE

No. 200

Supreme Court of Arkansas

October 28, 1918

Appeal from White Circuit Court; J. M. Jackson, Judge; affirmed.

STATEMENT OF FACTS.

John W Howle was shot and killed while a member in good standing of a fraternal benefit insurance company. His widow was named as beneficiary in the certificate and sued the company to recover upon the beneficiary certificate issued by it to her husband. The company denied liability on the ground that Howle's death occurred while he was in violation of a provision of the policy, which reads as follows:

"If a guest holding a covenant shall be convicted of felony, or expelled from the order, or become intemperate in the use of liquor, or use opiates, cocaine, chloral or other narcotics or poison, to such an extent as to impair his health, or shall die, or become totally and permanently disabled, or suffer loss of limb or eye, or sustain broken limb in consequence of any such misdemeanor, or any violation of law or use of liquor or drugs, or in consequence of a duel, or a combat, except in self-defense, or by the hands of a beneficiary (except by accident) or by the hands of justice or by disease resulting from vicious, intemperate or immoral acts on the part of such guest, or if representations in the application upon the faith of which the covenant was issued shall be found untrue, or if there shall be any failure to comply with the constitution, laws, rules and regulations of the fraternity, the covenant shall be void and of no effect and all payments or benefits which may have accrued thereunder shall be forfeited without notice or service."

The company admitted the issuance of the certificate to Howle and that he was a member in good standing at the time of his death. It introduced proof tending to show that Howle was killed while engaged in a voluntary combat with Marvin Sowell, marshal of the city of Searcy. It also introduced proof tending to show that Howle became intemperate in the use of liquor within the meaning of the provision of the policy above quoted.

On the part of the plaintiff it was shown that Howle had had trouble with Sowell on account of the enforcement of a cow ordinance in the city of Searcy and that he had become insane on the subject of his troubles with the town marshal.

The jury returned a verdict for the plaintiff and from the judgment rendered the defendant has appealed.

Judgment affirmed.

Hamilton Moses and Brundidge & Neelly, for appellant.

1. The admission of nonexpert testimony as to insanity of deceased was erroneous. 103 Ark. 200.

2. The court erred in giving the instructions requested by appellee. Some of them are not the law, some abstract and some misleading.

3. There is no testimony showing Howle was insane. He lost his life by reason of a duel or mutual combat, and this vitiated the policy unless it was in self-defense.

J. N Rachels, for appellee.

The law of this case is settled. 118 Ark. 226; 124 Id, 224. Insanity was proved, and there is nothing that calls for reversal.

OPINION

HART, J., (after stating the facts).

It is first earnestly insisted by counsel for the defendant that the court erred in admitting the testimony of nonexpert witnesses on the question of the insanity of Howle. This is the fifth appeal in this case. The opinion on a former appeal reported in 124 Ark. 224, under the style of Eminent Household of Columbian Woodmen v. Howle, deals particularly with this phase of the case. The witnesses who testified as to the insanity of Howle had known him intimately for a great many years and had come in contact with him frequently since he had had trouble with the town marshal of Searcy on account of the enforcement of a cow ordinance. They all testified that he became highly excited when he talked about his troubles with Sowell, and that he seemed to be insane on this subject. Some of them testified that he appeared to be insane on this subject when he was drinking, while others testified that he seemed to be insane on the subject when not drinking. All of the witnesses told of their long and intimate acquaintance with Howle and their opportunities to know the condition of his mind by frequently meeting with him and talking with him on the subject of his troubles. A comparison of the present record with the records on the former appeals shows that the testimony on this point is substantially the same. The testimony was held to be competent upon the former appeals, and that ruling has become the law of the case. It may not be amiss, however, to state here that in making the ruling we adhered to the well settled principles of law in our previous decisions bearing upon the admissibility of the testimony of nonexpert witnesses on the question of insanity. The...