Nat'l Council of Knights v. Fowler

• Decision Date: 14 August 1917
• Docket Number: Case Number: 8075
• Citation: 66 Okla. 294,168 P. 914,1917 OK 428
• Parties: NATIONAL COUNCIL OF KNIGHTS AND LADIES OF SECURITY v. FOWLER.
• Court: Oklahoma Supreme Court

1917 OK 428

168 P. 914

66 Okla. 294

NATIONAL COUNCIL OF KNIGHTS AND LADIES OF SECURITY v. FOWLER.

Case Number: 8075

Supreme Court of Oklahoma

Decided: August 14, 1917

Syllabus

¶0 1. Trial--Directed Verdict---Evidence. A prima facie case having been admitted for plaintiff, it is not error for the trial court to refuse to direct a verdict for the defendant where the evidence in support of the affirmative defense relied upon does not prove the allegation of such defense to such a degree of certainty as to preclude reasonable men from differing thereon.

2. Insurance--Fraternal Beneficial Associations--Waiver of Warranties--Authority of Local Council. A local council of mutual benefit society who by the provisions of the by-laws of the society has authority to issue and deliver the benefit certificate and collect assessments has authority to waive conditions and warranties of the insurance contract.

3. Same. Where a local council of a mutual benefit society with authority to waive conditions and warranties of the contract of insurance receives dues from a member in payment of his assessment to the society, with full knowledge of the habits of the insured with reference to the use of intoxicating liquors, it thereby waives the conditions and warranties in the contract with reference to the use of such intoxicating liquors by the insured.

4. Same--Action on Certificate--Question for Jury--Waiver of Conditions. Where a local council of a mutual benefit society had authority to waive conditions and warranties in an insurance contract, held, it was not error for the trial court to submit the question as to whether or not the local council had waived said conditions and warranties to the jury, notwithstanding the court predicated the authority of the local council to waive said conditions and warranties upon the wrong section of the by-laws, especially where the result reached would have been the same.

W. C. Austin, for plaintiff in error.

Everett Petry and S. B. Garrett, for defendant in error.

WEST, C.

¶1 This is a suit instituted by the defendant in error, who will hereinafter be styled plaintiff, against plaintiff in error, who will hereinafter be styled defendant, in the district court of Jackson county, Okla., upon a beneficiary certificate of insurance issued by defendant to Dr. James E. Fowler, payable at his death to plaintiff, wife of the insured. Briefly stated, plaintiff alleged that said certificate was issued in September, 1907, by the defendant, acting by its president, W. B. Kirkpatrick, and J. M. Wallace, its secretary, and Local Council No. 1518, Knights and Ladies of Security of Altus, Okla., through its president and secretary, respectively. Copy of the certificate was attached to and made a part of the petition. Petition pleaded full and complete compliance by the insured of all conditions in said contract, and, further, that if there was a violation of any part of the contract that the same had been waived. Defendant's answer admitted the issuance of said certificate, the death of the insured, and receipt of proof of death, and denied that Local Council No. 1518 of the National Council of Knights and Ladies of Security of Altus was a local branch of defendant, and denied the authority of said local council to waive any conditions in the contract, and alleged that the insured had violated and forfeited his contract on account of certain false representations made in his application with reference to his use of intoxicating liquors and in the taking of a gold cure for same; and further, that after the issuance of such contract insured became addicted to the excessive use of intoxicating liquors, in violation of the contract, and that the excessive use of such intoxicating liquors was the proximate cause of his death. Upon the trial defendant admitted a prima facie case, but attempted to prove the affirmative defense set out above. There are a number of assignments contained in defendant's petition in error which were treated by the defendant in his brief and argument collectively, and we will treat these assignments in the same manner under two propositions: First. Did the court err in refusing to instruct a verdict for the defendant? Second. Did the court err in submitting to the jury the issue raised as to the authority of the Local Council No. 1518, Knights and Ladies of Security of Altus, Okla., to waive certain conditions of the insurance contract, and this last question is raised both in the admission of evidence over the objection of defendant and in giving certain instructions excepted to by the defendant. We will now consider the first proposition. Prima facie case having been admitted, and the defendant assuming the burden of proving an affirmative defense, was the evidence in the case such that only one logical conclusion could be drawn therefrom, or was it such that reasonable men might differ thereon? Applying this rule under the doctrine announced in case of National Council of Knights and Ladies of Security v. Lula Owens. 61 Okla. 256, 161 P. 178, second paragraph of the syllabus is as follows:

"The truth or falsity of warranties in an application for insurance, where there is a conflict in the evidence, is a question of fact for the jury."

¶2 There was a conflict in the testimony as to the truth of the statements made by the insured in his application for the policy and whether the insured had violated his contract after the issuance of the same, and the evidence as to whether or not the warranty contained in the application of the insured for the certificate in question was false in the sense that it would vitiate the contract and whether the insured had violated his contract after the issuance of the same was not such, in our opinion, that all reasonable men might draw the same conclusion therefrom. The Supreme Court of the United States in case of Knickerbocker Life Insurance Co. v. Foley, 105 U.S. 350, 26 L. Ed. 1055, in dealing with a situation similar to the one presented here, makes use of the following language:

"When we speak of the habits of a person, we refer to his customary conduct, to pursue which he has acquired a tendency from frequent repetition of the same acts. It would be incorrect to say that a man has a habit of anything from a simple act. A habit of early rising, for example, could not be affirmed of one because he was once seen on the streets in the morning before the sun had risen, nor could intemperate habits be imputed to him because his appearance and actions on that occasion might indicate a night of excessive indulgence. The court did not, therefore, err in instructing the jury that if the habits of the insured, 'in the usual ordinary and every day routine of his life, were temperate,' the representations made are not untrue, within the meaning of the policy, although he may have had an attack of delirium tremens from an exceptional overindulgence, and could not have been contemplated from the language used in the policy that it should become void from an occasional excess by the insured, but only when such excess had by frequent repetitions become a habit, and the testimony of the witness, who had been intimate with him for years, and knew his general habits, must have satisfied the jury that, whatever excesses he may at times have committed, he was not habitually intemperate."

¶3 And so in this case the evidence tended to show that, whatever indulgence the insured had been guilty of, it was not of a very frequent occurrence, and that it was an exceptional thing for him to be seen intoxicated, and, further, no witness testified that they had ever seen the insured take a drink, and a number testified who met him frequently that they had never seen him drinking or under the influence of liquor. And, further, the evidence tended to show that the president and local secretary, its financier, and a large number of the members were acquainted with the habits of the insured in regard to his use of intoxicating liquors, and some of these had been for the whole time that the same had been used by the insured, and the evidence on all the issues raised by the affirmative defense conflicted; and in view of this state of the evidence, indulging every inference which might fairly support the verdict, we cannot say as a matter of law that the insured used intoxicating liquors to excess within the purview of the contract. This was not shown to such a degree of certainty as to preclude reasonable men from differing thereon, and we hold that the court-did not err in refusing to instruct the jury to return a verdict for the defendant. Reed v. Scott, 50 Okla. 757, 151 P. 484, and cases cited thereunder. The last proposition involved is as to whether or not the knowledge of the Local Council No. 1518, Knights and Ladies of Security of Altus, and its officers, as to the habits of the insured, and the extent of his use of intoxicating liquors, could be imputed to the National Council, and this involves the action of the court in the admission of testimony on the part of the plaintiff and his instructions to the jury on this phase of the case. In other words if the theory of the plaintiff is correct that the knowledge of the local council could be imitated to the National Council, then the action of the trial court complained of was not erroneous, and, if, it could not be, it was. Our court, in case of Modern Woodmen of America v. Weekley, 42 Okla. 25, 139 P. 1138, fourth paragraph of the syllabus, lays down the following rule:

"The local agent of an insurance company who has authority to solicit, execute, and deliver policies for the company has authority to waive, conditions of the contract of insurance, but a local agent with power only to solicit applications and forward them to the company, who issues and delivers the policies, has no such power."

¶4 And in announcing this rule the court followed the well considered cases of Western National Insurance Co. v. Marsh, 34...