Mutual Protective League v. Walker

• Citation: 173 S.W. 802,163 Ky. 346
• Parties: MUTUAL PROTECTIVE LEAGUE v. WALKER.
• Decision Date: 04 March 1915
• Court: Kentucky Court of Appeals

173 S.W. 802

163 Ky. 346

MUTUAL PROTECTIVE LEAGUE v. WALKER.

Court of Appeals of Kentucky.

March 4, 1915

Appeal from Circuit Court, McCracken County.

Action by H. A. Walker against the Mutual Protective League. From a judgment for plaintiff, defendant appeals. Reversed, with directions.

D. G Park, of Paducah, for appellant.

S. H Crossland and W. Mike Oliver, both of Paducah, for appellee.

CARROLL J.

This appeal is prosecuted from a judgment in favor of the appellee, H. A. Walker, against the appellent league, for $1,000 recovered upon a benefit certificate issued upon the life of J. N. Walker and payable to the appellee as his wife.

The appellant is a benevolent or fraternal society, and the certificate here in question was issued in February, 1912. The insured, J. N. Walker, died March 25, 1913, and the appellant refused to pay the insurance specified in the certificate upon the ground that the insured was in default in the payment of his monthly assessments, and this failure under the contract, had worked a forfeiture of the certificate. Upon a refusal to pay, the appellee, as the beneficiary, brought this suit, and on a trial there was a verdict in her favor, and judgment accordingly.

Several issues were made by the pleadings, but the case went to the jury upon the single issue that the appellant by its acts and conduct, after the death of the insured, had waived its right to or was estopped to rely on the forfeiture. The trial court was evidently of the opinion that this issue was the only one upon which the appellee was entitled to go to the jury, and counsel for appellee seem to concur in this view of the matter, saying that the only question involved on this appeal is the correctness of the instruction given by the trial court. In view of this situation, it seems only necessary that we should consider this instruction and the evidence upon which it was based. This instruction, which sets out very clearly the grounds upon which a recovery was sought and had, is as follows:

"The court instructs you to find for the defendant, unless you shall believe, from the evidence in this case, that after the deceased, J. N. Walker, had failed to pay the dues or assessments owing by him to defendant, and the benefit certificate on which this suit was brought had been forfeited by the failure to pay said assessments, and after said Walker's death, that the defendant, with full knowledge that said benefit certificate had been forfeited on account of said failure, did, by one of its supreme officers or agents, other than Otis Clark, authorized to pay plaintiff or settle with her, request the plaintiff, beneficiary under said benefit certificate, to lose time or incur expenses, in leaving her home in Graves county, Ky. and in coming to Paducah, Ky. for the purpose of negotiating a settlement of her claim under said benefit certificate, and without notifying her that it was intended to rely upon said forfeiture for nonpayment of dues or assessments by said J. N. Walker, and that plaintiff, at the request of defendant, or its said officers, aforesaid, did lose time or did incur expenses in coming to Paducah in an effort to effect a settlement with defendant, and would not have done so had she known that defendant intended to rely on the said forfeiture of said benefit certificate, in which event, and if you shall so believe, then the law is for the plaintiff, and you will find for her $1,000, with interest from September 22, 1913."

It appears from the record that the appellee is an Illinois corporation, with a local council in Paducah, Ky. The financial and recording secretary of the Paducah Council, who may be said to have been the agent of the Supreme Council and to have had charge of the business affairs of the Paducah Council, was C. W. Clark. Otis Clark was a son of C. W. Clark, and at his father's request, and under his direction, attended to a good deal of the business attached to the office of secretary. Otis Clark was also well acquainted with and apparently a friend of the Walkers, and had been assisting J. N. Walker in keeping paid his assessments. It appears, however, that at the time J. N. Walker died there was some difference of opinion between the Walkers and the local council as to whether or not Walker, through Otis Clark, had paid all of his assessments as they fell due, and also in reference to efforts to reinstate Walker, who had apparently been dropped from membership on account of his failure to pay his assessments. At any rate, there is enough in the record to show that the league was disputing its liability to pay the insurance on account of the failure of Walker to keep up his assessments while Mrs. Walker was claiming that the assessments had all been paid and her husband reinstated. With this condition existing, Otis Clark, on March 30, 1913, wrote the following letter to Mrs. Walker, the appellee:

"Mrs. H. A. Walker, Fulton, Ky.--Companion: Please come to Paducah not later than Tuesday morning on the noon train. One of the Supreme Board of Directors is here and wants to see you. So it is necessary for you to come Tuesday on the noon train. If you haven't the money, borrow it and he will give it back to you.

Yours fraternally, Otis Clark."

In response to this letter, Mrs. Walker went from her home in Graves county to Paducah, a distance of something over 50 miles, at an expense of about $3. While at Paducah on this trip, she met a Mr. Parrish, one of the board of directors of the league, who made an effort to compromise her claim by paying the burial expenses of her husband, which offer she declined to accept. Testifying in regard to this interview with Mr. Parrish, appellee said:

"If you had known before you left home and made this trip to Paducah that Otis Clark or this man Parrish denied liability to you, would you have incurred this expense to come to Paducah? A. I don't think I would."

Asked on cross-examination, "What conversation did you say you had with Mr. Parrish?" she replied:

"He wanted to compromise with me and said he would pay the burial expenses if I had not been extravagant. I said, 'No; if you owe me anything you owe me $1,000.' He need not buy me. Q. Was that all that occurred? A. No, that wasn't all. Q. Did he tell you why he could not pay you the full amount? A. He said that we had not paid in any money since October; that we were suspended. Q. Did he say that was the real reason why the policy could not be paid? A. Yes, sir. Q. Did you say that was before the proof of death was made out? A. I think it was. Q. Did Mr. Parrish name any amount in compromise? A. He said he would pay the burial expenses. He didn't name any amount. Q. Did he say anything about you making out proof of death? A. I don't remember. I can't say. Q. Did you ever have more than one conversation with Parrish? A. Not that I remember of. Q. That is the last that you ever heard from him? A. Yes, sir. Q. Is that the only trip you made to Paducah to meet Mr. Parrish or any other agent of the company? A. Yes, sir; I think so, since Mr. Walker's death. I don't remember of but one trip. Q. Please state if you made more than one trip to Paducah at the request of any of its agents about the adjustment or settlement in any manner of this policy. A. I don't remember of but one trip. Q. How did you happen to make this trip? A. He wrote me to come. Q. Did you, before you arrived in Paducah, have any knowledge or information in any way that this company repudiated its contract with you or denied liability to you? A. I did not. Q. If you had known, before leaving your home on that occasion, that they denied liability, would you have come to Paducah and incurred this expense? A. I would not."

It appears from this evidence, which furnished the basis of the instruction given, that a short time after the death of the insured, and before the league had definitely declined to pay the certificate, or any proofs of death had been furnished or, indeed, anything had been done looking towards an adjustment of the matter, Otis Clark wrote to Mrs. Walker the letter of March 30th, and in response to this letter she came to Paducah for the purpose of seeing one of the chief officers of the league, and expended in making this trip about $3. At the time this visit to Paducah was made, there was, as stated, a dispute between Mrs. Walker and the local lodge as to whether the assessments due by her husband had been regularly paid, although it does not appear that previous to this time any definite action had been taken by the league to contest the certificate upon the ground that it had been forfeited by the failure to pay the dues. It may, however, be assumed that, previous to the Paducah interview, the chief officers of the league had information that induced them to believe, and they did believe, the certificate had been forfeited; but, notwithstanding...