Puls v. Grand Lodge A. O. U. W. of N. Dakota

• Decision Date: 10 December 1904
• Citation: 102 N.W. 165,13 N.D. 559
• Parties: PULS v. GRAND LODGE A. O. U. W. OF NORTH DAKOTA.
• Court: North Dakota Supreme Court

13 N.D. 559

102 N.W. 165

PULS

v.GRAND LODGE A. O. U. W. OF NORTH DAKOTA.

Supreme Court of North Dakota.

Dec. 10, 1904.

Syllabus by the Court.

1. In an application for insurance, the insured stated that he was not addicted to the habit of drinking intoxicating liquor, and had never drank immoderately. There was evidence that he sometimes drank intoxicating liquor, and on a few occasions appeared to be intoxicated. Held, that the evidence was not sufficient to sustain the allegation that the representations in the application were false, so as to require the submission of that question to the jury, in an action on the policy.

2. Proofs of death and the verdict of the coroner's jury stated that the insured died from alcoholic poisoning, and were admitted in evidence without objection. Held, that they had no probative force, because they expressed a mere opinion, based on the same evidentiary facts as were before the trial jury, and the report of death was not prepared by or in behalf of the beneficiary, and hence was not in the nature of an admission by her.

3. The insured was a member of a benevolent and fraternal insurance association, and, under the terms of the contract of insurance, he would forfeit his membership and insurance by failure to pay assessments and dues within the time fixed by the by-laws. The dues and assessments were regularly paid for him to the lodge by the financier of the local lodge, pursuant to an arrangement between the financier and a third person, who agreed to reimburse the financier for such payments. Held, that the insured had not forfeited his insurance, although the third person did not in fact reimburse the financier for such payments until after the death of the insured.

4. Testimony of persons who, by their association with the insured, had an opportunity to observe his habits, that they had seldom or never seen him drink or appear to be under the influence of liquor, was competent to show that he was not an habitual or immoderate drinker.

5. Declarations of a sick or injured person as to the nature, symptoms, and effects of the disease or injury under which he is suffering at the time are competent evidence in an action wherein the nature and cause of the malady are in question.

6. Voluntary and spontaneous declarations of the deceased to those in attendance upon him as to the cause of his illness, due to poison, from which he was then suffering, and soon died, are admissible in evidence as part of the res gestæ, where the circumstances are such as to preclude the idea of premeditation or any motive for falsifying.

7. Evidence examined, and held to sustain the finding of the jury that the death of the insured was not caused by indulgence in intoxicating liquor.

Appeal from District Court, Nelson County; Charles J. Fisk, Judge.

Action by Hannah Puls against the Grand Lodge of the Ancient Order of United Workmen of the State of North Dakota. Judgment for plaintiff. Defendant appeals. Affirmed.

John Carmody (Fred A. Kelley and G. A. Bangs, of counsel), for appellant. Frich & Kelly, for respondent.

ENGERUD, J.

This is an action to recover upon a beneficiary certificate or policy of insurance issued by defendant to plaintiff's husband, Barney Puls, and payable to plaintiff upon the death of her husband. The trial resulted in a verdict for plaintiff. Defendant has appealed from the judgment entered on the verdict.

Appellant is a benevolent and fraternal insurance association, made up of three interdependent organizations-a supreme lodge; a state grand lodge, having authority from the higher order; and subordinate lodges throughout the state, chartered by the grand lodge. The grand lodge (appellant in this action) is the contracting and responsible body of the order. Contracts of insurance are issued and approved by its officers, and it is held responsible for the payment of all death losses. The subordinate lodges have primary authority to admit applicants to membership, subject to regulations imposed by the grand lodge, and are also charged with the duty of collecting assessments levied upon its members, and making report and remittance thereof to the grand lodge. They also have authority, under certain restrictions, to reinstate suspended members. The beneficiary fund, out of which insurance is paid by the grand lodge, is obtained by assessments of $1 upon each certificate holder for every death. Such assessments are made by the grand lodge on the 1st day of the month, and are payable on the 28th day of the month when made. In addition to these assessments by the grand lodge, the members are also required to pay quarterly dues to the local lodge to which they belong. Barney Puls became a member of Lakota Lodge, No. 117, on the 2d day of May, 1898. At the same time he received from appellant the beneficiary certificate in question, by which appellant bound itself to pay to the beneficiary designated therein the sum of $2,000 upon the death of the said Barney Puls, subject to the conditions fixed by the constitution and by-laws of the order and the application for membership, all of which, by the terms of the certificate, were made part of the contract of insurance. Originally the certificate was made payable to one Anton Puls, but on May 2, 1901, in accordance with the rules of the order, the present plaintiff was substituted as beneficiary. On September 11, 1901, Barney Puls died. Proofs of death were duly made by the officers of the local lodge in accordance with the rules of the order and transmitted to the grand lodge. The latter body refused to pay the loss, and thereupon this action was brought.

The answer set up two defenses: First, that the insured obtained his certificate by false and fraudulent representations as to his habits with respect to the use of intoxicating liquors; second, that his death was caused directly by the use of intoxicating liquors. Either of these facts, if established, would, under the terms of the contract of insurance, relieve the defendant from liability. Defendant contends that both of these defenses were conclusively established by the evidence, and that its motion for a directed verdict should have been granted.

The trial court held that the evidence was insufficient to sustain the allegation of false representations, and instructed the jury not to consider that defense. The representations which appellant alleges were false are contained in the answers made by the insured to the following questions found in the application for membership: “Do you drink spirituous liquors? A. No habit.” “Do you drink malt liquors? A. No.” “Did you ever drink immoderately? A. No.” The application was made in May, 1898. There is no evidence in the record that Puls drank malt liquors or that he drank immoderately before taking the insurance. The answer, “No habit,” was an affirmation that he was not an habitual user of spirituous liquor, but it was also an admission that he was not a total abstainer. The most that can be said of the evidence on this question is that it shows that the insured sometimes drank liquor, and on a very few occasions appeared to have become intoxicated. This falls far short of showing him to be an immoderate or habitual drinker. “An occasional excess in the use of intoxicating liquor does not constitute a habit, or make a man intemperate, within the meaning of the policy. * * * The habit of using intoxicating liquor to excess is the result of indulging a natural or acquired appetite by continual use until it becomes a customary practice. This habit may manifest itself by delayed or periodical intoxication or drunkenness. When the general habits of a man are either abstemious or temperate, an occasional indulgence to excess does not make him a man of intemperate habits.” Bacon on Benevolent Societies, § 231. See, also, Insurance Co. v. Foley, 105 U. S. 350, 26 L. Ed. 1055;Insurance Co. v. Bank, 122 U. S. 501, 7 Sup. Ct. 1221, 30 L. Ed. 1100;Insurance Co. v. Reif, 36 Ohio St. 599, 38 Am. Rep. 613;Grand Lodge v. Belcham (Ill.) 33 N. E. 886. The question, “Did you ever drink immoderately?” referred to the applicant's previous habits, and not to exceptional and occasional acts. Chambers v. Insurance Co., 64 Minn. 495, 67 N. W. 367;58 Am. St. Rep. 549;Van Valkenburgh v. Insurance Co., 70 N. Y. 605;Grand Lodge v. Belcham, supra. We think, therefore, the trial court was right in holding that the defense of false representation was not sustained by the evidence, and in so instructing the jury.

As to the defense that the deceased came to his death as the direct result of intoxication, the evidence was conflicting, and the trial court therefore properly denied defendant's motion for a directed verdict, and submitted the question to the jury.

The evidence chiefly relied upon by defendant to sustain its averment that Puls' death was caused by the use of intoxicating liquor was the report of death, the verdict of the coroner's jury, and the testimony of Dr. Beek. The report of death and the verdict of the coroner's jury stated that the cause of death was alcoholic poisoning. The statement in the report as to the cause of death was based upon the opinion of Dr. Beek and upon the finding of the coroner's jury. The finding of the coroner's jury as to the cause of death was, in turn, predicated upon the opinion of Dr. Beek, who made the post mortem examination, and upon certain circumstances fully disclosed at the trial. Neither of these documents added anything to the weight of the testimony given by the doctor and other witnesses at the trial, because both documents merely set forth an opinion based on the same evidentiary facts which were before the trial jury. The respondent had nothing to do with the making of the report of death. That report was made by the officers of the local lodge pursuant to the rules of the order, and the intent and purpose of such rules were to prevent the beneficiary from having anything to do with...