Grand Lodge A. O. U. W. of Okl. v. Hopkins
| Decision Date | 05 November 1935 |
| Docket Number | 25316. |
| Citation | 52 P.2d 4,175 Okla. 170,1935 OK 1068 |
| Parties | GRAND LODGE A. O. U. W. OF STATE OF OKLAHOMA v. HOPKINS. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Dec. 3, 1935.
Syllabus by the Court.
1. Assignments of error not set out in the brief or not argued or supported by authorities are waived.
2. In pleading performance of conditions precedent on a life insurance policy, when action is brought to recover on the policy, it is sufficient as against general demurrer for plaintiff to allege in general terms that insured and plaintiff have performed all of the conditions of the policy on their part.
3. Where plaintiff's petition, in an action to recover on an insurance policy, in which plaintiff was named as beneficiary, properly alleged in general terms that insured and plaintiff had performed all the conditions on their part to be performed, under the provisions of said policy, and defendant's answer pleaded only evidential facts in answer to the allegations in plaintiff's petition, no reply by plaintiff was required.
4. Where plaintiff filed no reply to defendant's answer and both plaintiff and defendant filed motions for judgment on the pleadings, but thereafter, and without insisting on a hearing in advance of trial, upon these motions, defendant joined with plaintiff in a stipulation as to the facts in the case, many of which facts so stipulated were pleaded in defendant's answer, and the case proceeded to trial upon the facts so stipulated, as well as upon said motions for judgment on the pleadings, held, that defendant waived any objection on the ground that no reply was filed to its answer.
5. Fraternal insurance policy providing for its termination upon notice when policy indebtedness exceeds cash reserve, but containing no provision authorizing deduction of indebtedness from cash reserve available to pay premiums on extended insurance, construed, and held that, in absence of notice of termination, the entire cash reserve was available to pay premiums for extended term insurance.
6. Ambiguity in an insurance policy must be construed most strongly against the insurer.
Appeal from District Court, Kingfisher County; J. W. Bird, Judge.
Action by Jessie M. Hopkins, against Grand Lodge of the Ancient Order of United Workmen of the State of Oklahoma. Judgment for plaintiff, and defendant appeals.
Affirmed.
E. M Bradley, of Kingfisher, and Thompson & Walker, of Oklahoma City, for plaintiff in error.
McComb & Conrad and Robert D. Crowe, all of Oklahoma City, for defendant in error.
Plaintiff in error appeals from a judgment against it, in favor of defendant in error, on an insurance policy which it executed on the life of Horace E. Hopkins, of which defendant in error was the beneficiary. Hereinafter, the parties will be designated as they appeared in the trial court.
Some of the questions raised on this appeal arise upon the pleadings so that it will be necessary to refer more fully to them than would otherwise be required. Plaintiff's petition, in substance, alleges the incorporation of the defendant, under the laws of the state of Oklahoma, as a fraternal order engaged in the business of insuring the lives of its members that on March 31, 1925, defendant executed and delivered to Horace E. Hopkins, deceased, a policy of life insurance, or beneficiary certificate, whereby it agreed to pay plaintiff, as the wife of Horace E. Hopkins, in the event of his death, the sum of $2,000, and there is attached to the petition, as an exhibit, a copy of this policy.
Plaintiff also alleged that Horace E. Hopkins died November 20, 1931; that he, and plaintiff, as the beneficiary of said policy, "at all times prior to the death of the insured and subsequent thereto, did, in every particular conform and comply with and to all of the terms of said policy or beneficiary certificate and did in every way comply with all the provisions thereof * * * upon their part"; that defendant, by denying liability under said policy on the ground that it was not in force at the time of the death of the insured, waived formal proof of death by plaintiff; that demand by plaintiff for payment of the amount due her on this policy had been made, and refused by defendant, followed by prayer for a judgment for $2,000, interest, and costs.
After motions to quash summons and to require plaintiff to make her petition more definite and certain had been filed and overruled, defendant filed what it designated a "general demurrer" and a "special demurrer." These were overruled, defendant excepting to the order overruling same.
Defendant answered setting up three separate defenses. In its first defense defendant enters a general denial, except matters thereinafter admitted. Defendant admits that it executed and delivered to Horace E. Hopkins a policy of life insurance, or beneficiary certificate, with plaintiff as beneficiary, substantially as alleged in plaintiff's petition, and attaches a copy of this policy as an exhibit to its answer. The first defense also alleges that under the provisions of this policy, Horace E. Hopkins was required to pay to defendant, monthly, the sum of $10.69, consisting of $10.44 as monthly premium and 25 cents local dues; that these payments were made until the one required for March, 1930 (payable at any time during that month), when the insured failed to make this monthly payment, or any monthly payment due thereafter, and was suspended from membership in defendant for failure to make the payment for March, 1930, and never reinstated; that, as he was permitted to do under this policy, Horace E. Hopkins, on August 19, 1929, borrowed from defendant $164.96 under an agreement that he would pay interest on said amount at the rate of 5 per cent. per annum; that under this agreement the amount of the loan, with accrued interest, should be secured by a lien on said policy and be deductible from the face amount thereof, if the policy were in effect at the death of the insured; and that no part of said loan was ever repaid.
The first defense also sets up that the monthly payments which Horace E. Hopkins failed to make and the indebtedness, because of said loan, were properly chargeable against the policy and charged against it by defendant, and if the insured had died during the month of December, 1930, there would have been due the plaintiff the face amount of the policy less the amount of these charges, but that insured lived until November 20, 1931, without making any additional payments of premiums and dues, and defendant pleads, by way of conclusion from the facts alleged, that under its provisions, said policy had lapsed and defendant was not liable to plaintiff.
In its second defense, after incorporating by reference the allegations of its first defense, defendant sets out the eighteenth paragraph of the policy providing, among other things, that the constitution and bylaws of defendant form a part of the insurance contract, and pleads certain sections of said constitution and by-laws relating to compliance by members of the order with its rules, "Suspension for Non- Payment of Dues" and "Reinstatement," under which defendant contends that insured having been suspended for nonpayment of premiums and local assessments, and not having been reinstated prior to his death, it is not liable on the insurance contract.
Defendant's third defense, after adopting the allegations in its first and second defenses, sets out verbatim the nonforfeiture and automatic nonforfeiture provisions of the policy, providing in substance that when all payments required under the policy shall have been made for a period of three years, and default thereafter occurs, the member shall be entitled to certain options, based upon the table of surrender values of the policy, either to surrender the contract for its cash value, or to accept paid-up life insurance, or to have the insurance continue as term insurance for its face amount, if the option is exercised within thirty days after default, and that if the member fails to notify the order of his election of any of these options within thirty days after default, the insurance shall not be forfeited, "but the cash value, at date of default, shall automatically be applied to the payment of premiums as they successively fall due, and the insurance, under this contract shall be continued in full force for its face amount so long as the cash value remaining to the credit of this contract suffices to pay a single monthly premium." The nonforfeiture provision pleaded defines "cash value" under the various options.
In its third defense defendant also pleads that the insured did not, within thirty days after March 31, 1930 (when he defaulted on the monthly payment due for March, 1930), exercise either of the options under the nonforfeiture provision, and that therefore the automatic nonforfeiture provision, a part of which is above quoted, became applicable, and the cash value of this policy was automatically applied to the payment of premiums as they became due, "less the deductions due this defendant for the principal amount of said loan, interest thereon, amounts due for monthly premiums or assessments and dues not paid thereon and interest on said monthly assessments not paid thereon"; that on this basis, the insurance contract was continued in force until December 31, 1930, when it lapsed and expired.
Plaintiff filed no reply to defendant's answer, but filed a motion for judgment on the pleadings, and three days thereafter there was filed defendant's motion for judgment on the pleadings and a stipulation by the parties as to the facts, which was followed shortly by an additional stipulation as to facts.
Thereafter according to the record, the case was regularly set...
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