Sovereign Camp of Woodmen of the World v. Hodges

• Decision Date: 12 December 1916
• Citation: 72 Fla. 467,73 So. 347
• Parties: SOVEREIGN CAMP OF WOODMEN OF THE WORLD v. HODGES.
• Court: Florida Supreme Court

73 So. 347

72 Fla. 467

SOVEREIGN CAMP OF WOODMEN OF THE WORLD v. HODGES.

Florida Supreme Court

December 12, 1916

Error to Circuit Court, Columbia County; Mallory F. Horne, Judge.

Action by Mabel W. Hodges against the Sovereign Camp of the Woodmen of the World, a corporation. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Allegations in the count of a declaration are said to be repugnant when they contradict and neutralize each other in relation to matters of substance.

An allegation in a declaration upon a certificate of life insurance issued by a fraternal organization, which certificate is attached to the declaration and made a part of it by apt words, which is repugnant to a clause in the certificate of life insurance relating to a matter of substance, will be considered bad on demurrer.

A clause in a certificate of life insurance issued by a fraternal organization, which provides, in substance, that the insured shall participate in the beneficiary fund of the society to an amount of money stated should death occur during the second year of membership, and that 'payment of the certificate shall be based upon an assessment on the entire beneficiary membership of this order in good standing the full amount when so paid in no case to exceed the amount of one such assessment, nor shall any portion so paid be in excess of a like proportion of a single assessment on the entire beneficiary membership at that time,' etc.--is not repugnant to and inconsistent with an allegation in the declaration that the holder of the certificate should participate in the beneficiary fund to a certain amount should his death occur within the second year of membership and the 'defendant promised to pay to plaintiff the beneficiary named' in the certificate the certain sum so stated.

The performance of conditions precedent may be averred generally by either party in an action.

In a civil action upon a certificate of life insurance, where the defense was that the insured came to his death by suicide the burden of proof is upon the party averring the suicide but need not be established to the satisfaction of the jury beyond a reasonable doubt, but the evidence of suicide should preponderate in support of that contention to meet the burden of proof.

Where in a civil case the evidence of suicide is entirely circumstantial and is not so complete in its probative value as to exclude an hypothesis inconsistent with the theory of death by suicide, a verdict against the party upon whom the burden of maintaining a plea of death by suicide rested will not be disturbed as being contrary to the evidence.

Evidence examined and found sufficient to support the verdict.

COUNSEL Jos. A. Edmondson and W. C. Hodges, both of Tallahassee, for plaintiff in error.

R. T. Boozer, of Lake City, for defendant in error.

OPINION

ELLIS J.

Mabel W. Hodges sued the Sovereign Camp of the Woodmen of the World, upon a beneficiary certificate of life insurance which the defendant had issued to John G. Hodges, husband of the plaintiff.

The declaration alleged that John G. Hodges in February, 1913, being then a member in good standing of a subordinate lodge of the defendant, made application for a 'beneficiary certificate' of life insurance; that the defendant issued the certificate, and it was attached to and made a part of the declaration. It was alleged in the declaration that the certificate provided that 'John G. Hodges should participate in its beneficiary fund to the amount of two thousand two hundred and fifty dollars should his death occur during the second year of his membership and the further sum of one hundred dollars for the erection of a monument, to his memory as provided in the constitution and laws of the defendant'; that while the certificate was in force and during the second year of John G. Hodges' membership, he died; that he had paid all dues and assessments levied or charged against him, and had fully complied with all the stipulations, conditions, and provisions of the constitution and by-laws of the defendant and the contract of insurance on his part to be kept and performed; that the plaintiff was the wife of John G. Hodges at the time of his death, and is the only beneficiary under the certificate, and that to her and none other is payable the sums of money 'which the defendant promised to pay upon the death of the said John G. Hodges as aforesaid'; that the defendant had been notified of the death of Hodges, the insured, and request made for the payment of the sums of money due to the plaintiff under the certificate.

The declaration contained a second count, in which an additional sum was claimed as fees and compensation for the plaintiff's attorney in prosecuting the suit against the defendant. The second count, however, seems to have been abandoned by the plaintiff below.

The 'beneficiary certificate' which was issued to 'J. G. Hodges' in the sum of $3,000, and which was attached to the declaration and made a part of it, contains the following clause:

'This certificate issued by the Sovereign Camp of the Woodmen of the World by its authority, witnesseth, that Sovereign John G. Hodges a member of Browning Camp No. 47 located at Live Oak, state of Florida, is, while in good standing as a member of this fraternity, entitled to participate in its beneficiary fund to the amount of one thousand five hundred dollars should his death occur during the first year of his membership, two thousand two hundred and fifty dollars should his death occur during the second year of his membership, three thousand dollars should his death occur after the second year of his membership, payable at his death to Mable W. Hodges bearing relation to him of wife by the Sovereign Camp of the Woodmen of the World.'

The certificate also contained the following provisions:

'Provided, that the payment of this certificate or any part thereof shall be based upon one assessment on the entire beneficiary membership of this order in good standing; the full amount when so paid in no case to exceed the amount of one such assessment, nor shall any portion so paid be in excess of a like proportion of a single assessment on the entire beneficiary membership at that time. There shall also be paid the sum of one hundred dollars for the erection of a monument to his memory as provided in the constitution and laws of the order.

'This certificate is issued and accepted subject to all of the conditions on the back hereof and this certificate together with the articles of incorporation, the constitution and laws of Sovereign Camp of the Woodmen of the World and the application for membership and medical examination shall constitute the contract between the order and the member, and any changes, additions or amendments to the articles of incorporation, constitution and laws hereafter made or enacted shall bind the member herein named and his beneficiaries, and shall govern and control the contract in all respects the same as though such changes, additions or amendments had been made prior thereto and were in force at the time of his application for membership, also subject to the by-laws of the camp of which he is a member.'

One of the conditions upon which the certificate was issued and accepted was that it should be null and void and of no effect in case the member holding the certificate should die 'by his own hand or act, whether sane or insane,' etc.

The defendant below demurred to the declaration, the grounds of which are given in full, and are as follows:

'(1) The allegations, or statements, contained in the cause of action, which is made a part of plaintiff's declaration, are repugnant to and inconsistent with the allegations in the declaration.

'(2) The declaration alleges that the defendant promised to pay to the plaintiff the sum of $2,250 should the death of John G. Hodges, mentioned and described in the said declaration, occur during the second year of his said membership; while the said cause of action provides that the said John G. Hodges is, while in good standing as a member of the Woodmen of the World, entitled to participate in its beneficiary fund to the amount of $2,250 should his death occur during the second year of his membership, payable at his death to the plaintiff by the defendant.

'(3) Although the said cause of action contains a certain provision in the following words: 'This certificate is issued and accepted subject to all of the conditions on the back hereof and this certificate together with the articles of incorporation, the constitution and laws of Sovereign Camp of the Woodmen of the World and the application for membership and medical examination shall constitute the contract between the order and the member, and any changes, additions or amendments to the articles of incorporation, constitution and laws hereafter made or enacted shall bind the member herein named and his beneficiaries, and shall govern and control in all respects the same as though such changes, additions or amendments had been made prior thereto and were in force at the time of his application for membership, also subject to the by-laws of the camp of which he is a member.' The said provision is not alleged in either court of the declaration.

'(4) The declaration does not allege that there is a sufficient amount of money in the beneficiary fund of the defendant with which to pay plaintiff's claim.'

This demurrer was overruled, and such action of the court is assigned as constituting error.

The plaintiff in error, by its counsel, contends that the following allegation in the declaration, viz. that the certificate provided that 'John G. Hodges should participate in its...