Modern Woodmen of America v. Head

• Citation: 209 Ala. 420,96 So. 219
• Decision Date: 01 February 1923
• Docket Number: 6 Div. 612.
• Parties: MODERN WOODMEN OF AMERICA v. HEAD.
• Court: Alabama Supreme Court

96 So. 219

209 Ala. 420

MODERN WOODMEN OF AMERICA v. HEAD.

6 Div. 612.

Supreme Court of Alabama

February 1, 1923

Rehearing Denied May 10, 1923.

Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.

Action by Lula Head against the Modern Woodmen of America. Judgment for plaintiff, and defendant appeals. Affirmed.

Truman Plantz, of Warsaw, Ill., George H. Davis, of Rock Island Ill., and Wm. A. Jacobs, of Birmingham, for appellant.

H. M Abercrombie and Luther Patrick, both of Birmingham, and E. L Hargrave, of Fairfield, for appellee.

GARDNER J.

One Eugene Head became a member of the Modern Woodmen of America, appellant, and was issued a benefit certificate, dated April 1, 1919, in the sum of $1,000, payable in case of his death to his mother, Lula Head, appellee here. Eugene Head died on November 27, 1919, and the beneficiary named in said certificate instituted this suit to recover the aforesaid sum.

The cause was tried upon the plea of general issue in short by consent with leave to give in evidence any matter by either party, which, if well pleaded, would be admissible in defense of the action or by way of reply thereto.

There was an agreement between counsel for the sake of brevity as to some of the evidence. This agreement discloses that defendant order is a fraternal beneficiary society, organized under the laws of Illinois and duly authorized to transact business in this state; that the contract which forms the basis of this suit was evidenced by the by-laws of the order, application of Head for membership, and the benefit certificate issued.

The application was in writing, dated March 20, 1919, for membership in the defendant society at Fairfield Camp, in Jefferson county. This application formed a basis for the issuance of the benefit certificate, and the defendant society, as such, issued the same relying upon the truth of the answers contained in the application. The by-laws of the order provided, in substance, that one engaged in the occupation of railroad switchman should not become a beneficial member of the society. There is another section of the by-laws providing there should be no waiver of the by-laws of the society by any member of the local camp or any other person unless presented in writing to the head clerk of the society. The application referred to the by-laws and stated that the applicant fully understood the same. Among other questions in the application was that relating to the business or occupation of the applicant, to which question the application shows as in answer "farmer" and the name of the employer as "self." It is further stated that the applicant had verified the answers and adopted them as his own, whether written by himself or not, and declared that they are full, complete, and literally true; that their literal truth shall be a condition precedent to any binding contract issued on the faith thereof. The benefit certificate issued contained many of the stipulations above mentioned.

It is without dispute that at the time of making this application for membership Eugene Head was employed by the Tennessee Coal & Iron Company as a switchman and brakeman, and was not engaged in the occupation of a farmer; that he continued to be employed as a switchman until his death, having been killed while in such employment as switchman. His application for membership was taken by one Levine, who was state deputy head consul for the defendant order in this state. There was evidence tending to show that Levine was general agent for the defendant in Alabama, being in charge of soliciting applications and obtaining new members for the society in this state. Levine testified that the insured, in answer to the question as to occupation, stated he was a farmer, and that the application therefore correctly represents the answer of the insured. Levine wrote the application himself, filling out the blank spaces, but he did not ask him by whom he was employed, writing the word "self" without further inquiry. Plaintiff in rebuttal offered the testimony of one Dixon who was consul of the local camp at Fairfield, and who testified that he was present at the time Levine wrote Head's application, and was an onlooker. He was allowed to state, over defendant's objection, that the insured's answer in response to the question as to occupation was that he was working at the coke plant of the Tennessee Company's by-product plant, and that he said nothing about being a farmer.

The purpose of this testimony was to show that the insured acted in good faith, giving answer as to the nature of his occupation, and that the defendant's general agent had falsely and fraudulently written the answer as "farmer," and thus gave foundation for the theory of estoppel as an answer to the defense.

It is insisted that this evidence is inadmissible as contrary to the rule that parol testimony will not be admitted to vary or contradict the terms of a written instrument. Upon this question there is a contrariety of opinion. Many cases are reviewed in Northern Assurance Co. v. Grand View Building Co., 183 U.S. 308, 22 S.Ct. 133, 46 L.Ed. 213, and numerous authorities cited in the note to Haapa v. Met. Life Ins. Co., 150 Mich.

467, 114 N.W. 380, 16 L. R. A. (N. S.) 1165, 121 Am. St. Rep. 627. The California court in Lyon v. United Moderns, 148 Cal. 470, 83 P. 804, 4 L. R. A. (N. S.) 247, 113 Am. St. Rep. 291, 7 Ann. Cas. 672, held such evidence admissible upon the theory that the insured had a right to show that the writing referred to in the application was procured under such circumstances by the company, through its agent, as to estop the company from using it in relying on its contents. Other authorities, as shown by the note in 16 L. R. A. (N. S.) supra, place the holding upon a relaxation of the parol evidence rule growing out of the peculiarity of insurance contracts. But a review of the numerous authorities, and the reasoning underlying the same, would serve no useful purpose at this time, as this court in Syndicate Ins. Co. v. Catchings, 104 Ala. 176, 16 So. 46, held there was no error in admitting such parol proof.

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