Puls v. Lodge
| Decision Date | 10 December 1904 |
| Court | North Dakota Supreme Court |
Affirmed.
John Carmody, G. A. Bangs and Fred A. Kelley, for appellant.
The officers of the subordinate lodges are the agents of the members thereof in the transaction of all official business required of them by the beneficiary rules, and are not the agents of the grand lodge. Graves v. M. W. A., 89 N.W. 6; Elder v. Grand Lodge A. O. U. W., 82 N.W 987; Grand Lodge A. O. U. W. v. King, 38 N.E. 352.
The testimony of the witness Smith, that the deceased when sick said he had taken horse medicine, was incompetent and hearsay, made out of the hearing of the defendant, and no part of the res gestae, and intended to help plaintiff's case. Riley v. Riley, 9 N.D. 580, 84 N.W. 347; Scribner v. Adams, 73 Me. 541; Perry v. Roberts, 17 Mo. 36.
The fact that the collecting officer received assessments after they were due was not binding on defendant, he being the agent of the members of the subordinate lodge, and not of defendant. Graves v. M. W. A., 89 N.W. 6; Grand Lodge A. O. U. W. v. King, 38 N.E. 352; Elder v. Grand Lodge A. O. U. W., 82 N.W. 987.
An applicant for life insurance is bound by his representations in the application for a policy. Knudson v. Grand Council of N.W. Legion of Honor, 63 N.W. 911; Schmitt v Supreme Tent of Maccabees, 73 N.W. 22; Hogness v Supreme Council of Champions of Red Cross, 18 P. 125; Perine v. Grand Lodge A. O. U. W., 53 N.W. 367; Cobbs v. Covenant Mutual Ben. Ass'n, 10 L. R. A. 666.
The verdict of the coroner's jury that deceased came to his death by the continued use of alcoholic spirits as a beverage, the same being admitted without objection, is prima facie proof of the cause of his death. 1 Greenleaf, section 556; 1 Starkie, section 1009; Grand Lodge of Ill. v Wieting, 48 N.W. 48; U. S. Life Ins. Co. v. Kielgast, 6 L. R. A. 65; Walther v. Mutual Ins. Co., 4 P. 413; Pyle v. Pyle, 41 N.E. 999.
The proofs of death were admitted in evidence without objection, and show that the decedent's death was caused by alcoholic poisoning and are prima facie evidence of the facts therein stated. Walther v. Mutual Life Ins. Co., 4 P. 413; Mut. Ben. Ins. Co. v. Newton, 22 Wall. 32, 22 L.Ed. 793; Modern Woodmen of Amer. v. Von Wold, 6 Kan.App. 231.
When a beneficiary certificate was issued, upon representations that the deceased was not addicted to the use of intoxicating liquors, if he was, then plaintiff cannot recover. McVey v. A. O. U. W., 20 A. 873; Meacham v. N. Y. State Mut. Ben. Ass'n, 24 N.E. 283; Van Valkenburg v. Ins. Co., 70 N.Y. 605; Grand Lodge A. O. U. W. v. Belcham, 33 N.E. 886; Knickerbocker Life Ins. Co. v. Foley, 105 U.S. 350, 26 L.Ed. 1055.
It was for the jury, not the court, to say whether deceased obtained the beneficiary certificate by false representations as to his habits of drinking intoxicating liquors. A question should never be taken from the jury where there is evidence to sustain it. Vickery v. Burton, 6 N.D. 245, 69 N.W. 193; McRae v. Hillsboro Nat'l Bank, 6 N.D. 353, 70 N.W. 813; Pirie v. Gillitt, 2 N.D. 255, 50 N.W. 710; Slattery v. Donnelly, 1 N.D. 264, 47 N.W. 375; Cameron v. G. N. Ry. Co., 8 N.D. 124, 77 N.W. 1016.
The issue as to whether deceased obtained the beneficiary certificate sued on by false representations as to his being addicted to the use of intoxicating liquors, should have been submitted to the jury under proper instructions. McVey v. A. O. U. W., 20 A. 873; Meacham v. N. Y. State Mut. Ben. Ass'n, 24 N.E. 283; Van Valkenburg v. Ins. Co., 70 N.Y. 605; Belcham v. Grand Lodge A. O. U. W., 33 N.E. 886; Knickerbocker Life Ins. Co. v. Foley, supra..
Frick & Kelly, for respondent.
A beneficial society that knowingly permits a dissolute or drunken member to retain his membership during his lifetime will be estopped to cancel his insurance upon that ground after death. Grand Lodge A. O. U. W. v. Brand, 46 N.W. 95; High Court of Forresters v. Schweitzer, 49 N.E. 506; Coverdale v. Royal Arcanum, 61 N.E. 915; Supreme Tent, etc., v. Volkert, 57 N.E. 203; N.W. Mut. Life Ins. Co. v. Hazelett, 4 N.E. 582; McGurk v. Insurance Co., 16 A. 263; Newman v. Covenant Mut. Ben. Ass'n, 40 N.W. 87; Insurance Co. v. Hanna, 81 Tex. 487; Supreme Lodge v. Davis, 58 P. 595; Pomeroy v. Insurance Inst., 59 Am. Rep. 144.
The acceptance and retention of dues and assessments and the acceptance thereof, after death, and the failure of the defendant to declare the policy forfeited, taken singly or together, are sufficient to estop the defendant from asserting the defense set up in its answer. M. W. A. v. Lane, 86 N.W. 943; M. W. A. v. Coleman, 89 N.W. 641; Phoenix Life Ins. Co. v. Raddin, 120 U.S. 183, 30 L.Ed. 644; Erdman v. The Mut. Ins. Co. of the Order of Herman's Sons, 44 Wis. 376; Supreme Lodge v. Wollenvos, 119 F. 671; McCormick v. Association, 56 N.Y.S. 905; Supreme Lodge v. Turner, 47 S.W. 44; Supreme Court of Honor v. Sullivan, 59 N.E. 37; Home Fire Ins. Co. v. Phelps, 71 N.W. 303.
The view is very generally sustained that officers of local lodges are agents of the responsible body and that the supreme lodge is bound by their acts. Grand Lodge A. O. U. W. v. Lachmann, 64 N.E. 1022; M. W. A. v. Tevis, 117 F. 369; Woodmen v. Lane, supra; Order of Forresters v. Scweitzer, supra; Mee v. Banker's Life Ass'n of Minn. 72 N.W. 74.
Beneficiary certificates are prima facie proof of good standing, and when in evidence, have the further effect of casting the burden of proof upon the defendant of showing that such good standing no longer continues. Kumle v. Grand Lodge A. O. U. W., 42 P. 634; Elmer v. Mut. Ben. Ass'n, 64 Hun, 639, 138 N.Y. 642, 34 N.E. 512; Chadwick v. Triple Alliance, 56 Mo.App. 463; Scheuffler v. Grand Lodge A. O. U. W., 47 N.W. 799; Lazinsky v. Supreme Lodge, 31 F. 592; Agnew v. Grand Lodge A. O. U. W., 17 Mo.App. 254.
A witness testified that during eleven years he had known deceased to drink twice; another pronounced the departed brother a "very moderate drinker; " another saw deceased drink from a bottle, and another in 1895 saw him "very slightly, if any, under the influence of liquor." Such testimony is wholly inadequate to establish the existence of a habit of drinking in deceased. Knickerbocker Life Ins. Co. v. Foley, 105 U.S. 350; 26 L.Ed. 1055; N.W. Life Ins. Co. v. Muskegon Bank, 122 U.S. 501, 30 L.Ed. 1100; Aetna Life Ins. Co. v. Davey, 123 U.S. 739, 31 L.Ed. 315; Wolf v. Insurance Co., 9 F. 249; Chambers v. N.W. Mut. Life Ins. Co., 67 N.W. 367; Van Valkenburg v. Insurance Co., 70 N.Y. 605; Insurance Co. v. Simpson, 28 S.W. 837; Grand Lodge A. O. U. W. v. Belcham, 33 N.E. 886.
Courts do not presume fraud; defendant must show the facts by proof that would be clear, satisfactory and convincing, so as to exclude every other reasonable hypothesis. Ley v. Metropolitan Life Ins. Co., 94 N.W. 568; Leman v. Manhattan Life Ins. Co., 24 L. R. A. 589.
The burden of proof was on the defendant to establish its contention as to alleged false answers as to alleged cause of decedent's death. Insurance Co. v. Bank, 72 F. 413; Insurance Co. v. Wood, 73 F. 81; Mer. Mut. Ins. Co. v. Folsom, 85 U.S. 237; 21 L.Ed. 827; Fiske v. Ins. Co., 32 Mass. 310; Daniels v. Insurance Co., 66 Mass. 416; Supreme Lodge v. Wollschlager, 44 P. 598; Modern Woodmen v. Sutton, 38 Ill.App. 327; Nat'l Ben. Ass'n v. Grauman, 7 N.E. 233; Perine v. Grand Lodge A. O. U. W., 53 N.W. 367.
If the court is satisfied that, conceding all the inferences which the jury could justifiably draw from the testimony, the evidence is insufficient to warrant a verdict for the plaintiff, the court should say so to the jury. Avery v. Bowdon, 6 El. & Bl. 953, 88 E. C. L. 953; McMahon v. Leonard, 6 H. of L. Cas. 992; Witkowsky v. Wasson, 71 N.C. 451; Peet v. Dakota F. & M. Ins. Co., 1 S.D. 462, 47 N.W. 532; Levitzky v. Canning, 33 Cal. 299; Dodge v. Gaylord, 53 Ind. 365; Holland v. Kindregan, 155 Pa. 156, 25 A. 1077; Cole v. Hebb, 7 Gill & J. 41.
Fraternal insurance contracts should be liberally construed to effect the benevolent objects of the different bodies. Supreme Lodge K. P. v. Schmidt, 98 Ind. 374; Ballou v. Gile, 7 N.W. 561; Payne v. Mut. Rel. Soc. 2 How. Pr. 228; Mass. Ben. Life Ass'n v. Robinson, 42 L. R. A. 261; Goodwin v. Provident Savings Ass'n, 32 L. R. A. 473; Burkheiser v. Nat. Acc. Ass'n, 26 L. R. A. 112; Kratzenstein v. Western Ass'n Co., 5 L. R. A. 799; Pettit v. State Ins. Co., 43 N.W. 378; Olson v. Ins. Co., 35 Minn. 432; Price v. Ins. Co., 17 Minn. 497.
The proof of death has no probative force whatever to sustain any issue looking to the forfeiture of the beneficiary's right to the insurance. Cox v. Royal Tribe of Joseph, 60 L. R. A. 630; Bentz v. N.W. Aid Ass'n, 41 N.W. 1037; Goldschmidt v. Mut. Life Ins. Co., 7 N.E. 408; Anderson v. Supreme Council, 31 N.E. 1092; McMaster v. Ins. Co., 55 N.Y. 222.
It was within the discretion of the trial court to permit plaintiff to show in rebuttal that deceased's habits as to the use of intoxicants, were otherwise than claimed by defendant. Maier v. Mass. Ben. Ass'n, 65 N.W. 552.
The representations by a sick person of the nature, symptoms and effects of the malady, under which he is laboring at the time, are received as original evidence. 1 Greenleaf on Ev section 102; Sanders v. Reister, 46 N.W. 680; Travelers Ins. Co. v. Mosley, 8 Wall. 397, 19 L.Ed. 437; Bennett v. N. P. Ry. Co., 2 N.D. 112, 49 N.W. 408; Atkinson, T. & S. F. R. Co. v. Johns, 14 P. 237; Hagenlocker v. Railway Co., 99 N.Y. 137; Hathaway v. Ins. Co., 48 Vt. 335; Depew v. Robinson, 95 Ind. 109; Bacon v. Charlton, 7 Cush. 581; Hatch v. Fuller, 131 Mass. 574; State v. Howard, 32 Vt. 380; Elliott v. Van Buren, ...
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