Stevens v. Woodmen of the World

Decision Date18 May 1937
Docket Number7660.
Citation71 P.2d 898,105 Mont. 121
PartiesSTEVENS v. WOODMEN OF THE WORLD (PURVIS et al., Interveners.)
CourtMontana Supreme Court

Rehearing Denied Oct. 11, 1937.

Appeal from First District Court, Lewis & Clark County; George W Padbury, Jr., Judge.

Action by Marie Cushing Stevens against the Woodmen of the World, in which Ida Stevens Purvis and others intervened. Judgment for plaintiff, and defendant appeals.


SANDS C.J., and STEWART, J., dissenting.

John G Brown and Wm. A. Brown, both of Helena, for appellant.

W. D. Rankin and A. P. Acher, both of Helena, for respondent.

Loble & Adair, of Helena, and Chester Onstad, of Broadus, for interveners.


Plaintiff brought this action to recover on a policy of life insurance issued by the defendant, a fraternal insurance corporation operating under the lodge system. The cause was tried before the court sitting without a jury, and resulted in a judgment in favor of the plaintiff in accordance with the prayer of her complaint. The trial court found the issues generally in favor of the plaintiff. The appeal is from the judgment.

The defendant contends that the evidence was insufficient to support the judgment. A. W. Stevens, the insured, in the year 1922 secured a policy of insurance from the defendant. On November 1, 1928, a new policy was issued to Stevens in lieu of the former one under a different plan of insurance, but for a like amount; he died on December 16, 1932. In the application for the original policy, and also in his application for the conversion of it into the later policy, he designated Marie Cushing, the plaintiff, as beneficiary, stating in each instance that she was his cousin. She was not, at the time of making these applications and the issuance of these policies, so related to the insured. She was designated as the beneficiary in the policies showing her relationship in each to be that of a cousin to the insured.

Plaintiff was married to Dr. Cordan, who died in Salt Lake City in 1901. She testified on the trial of this case that she was married to Albert J. Cushing in 1904. Later she and Cushing came to Helena, and she met the insured about 1917 or 1918. Thereafter she and these two men lived together until Cushing's death on October 31, 1931. Cushing had a policy of life insurance issued by the defendant in favor of the plaintiff as his wife, and this policy was paid to the plaintiff.

It was the theory of plaintiff's case that she and Stevens were husband and wife at the time of the latter's death as the result of a common-law marriage between them occurring at Salt Lake City some few days after Cushing's death and immediately following his burial there. The undisputed evidence is that following the return of plaintiff and the insured from Salt Lake in 1931, they lived together in Helena and Missoula as man and wife, held each other out as such, and were regarded as man and wife by their friends and acquaintances during this interval of time.

It appears from the record that the insured left a will in plaintiff's favor, and she testified in a proceeding to have the will admitted to probate. She was confronted with this testimony on the trial of this case, which was contradictory of her testimony given in this case. She testified in the probate proceedings that she and Cushing were never married and that, after she met Stevens, she and Stevens lived together as man and wife, and Cushing became the boarder. Other contradictions appear between her testimony on these two different occasions as disclosed by the record before us, but these are sufficient to illustrate the point. Plaintiff's testimony on the former hearing was not substantive evidence concerning the subject-matter, and its presentation in the trial of this cause only raised a question of the credibility of the witness, which was for the trial court. In the case of Wise v. Stagg, 94 Mont. 321, 22 P.2d 308, 311, we said: "After contradiction of a witness by showing his inconsistent statements at other times, not only is such contradictory evidence not substantive evidence concerning its subject-matter, but, as before, the credibility of the witness remains a question for the jury.

6 Jones' Commentaries on Evidence (2d Ed.) 4769; Thompson v. Los Angeles, etc., R. Co., 165 Cal. 748, 134 P. 709; Steele v. Kansas City Southern R. Co., 302 Mo. 207, 257 S.W. 756." This statement was approved by this court in the case of Osnes Livestock Co. v. Warren, 103 Mont. 384, 62 P.2d 206.

Under the constitution and bylaws of the defendant as well as section 6311 of our Codes (the Colorado statute C. L.1921, § 2604, is the same as ours), a first cousin could become the beneficiary of a fraternal life insurance policy. One who does not occupy some of the degrees of relationship with the insured enumerated in section 6311, supra, may not be the beneficiary of such a policy. Nitsche v. Security Benefit Ass'n, 78 Mont. 532, 255 P. 1052. Clearly, the plaintiff was not at the time of the issuance of this policy a legal beneficiary. The defendant contends that because of this fact, the representations made in the application amounted to a fraud upon the defendant, and that, therefore, under the terms of certain provisions of the constitution and by-laws, the policy was vitiated because of this fraud. The policy, however contained the following provision: "This certificate shall be incontestable for any cause except non-payment of benefit payments and dues, when it has been maintained continuously in force for a period of one year during the lifetime of the member, provided that if the certificate has been reinstated at any time, then said period of one year shall run from the date of last reinstatement and subject to any statements made to secure such reinstatement."

The effect of such incontestable clause in insured's policy is well stated by the Supreme Court of the United States in the opinion of the case of Mutual Insurance Co. v. Hurni Co., 263 U.S. 167, 177, 44 S.Ct. 90, 91, 68 L.Ed. 235, 31 A.L.R. 102, in the following language: "It is true, as counsel for petitioner contends, that the contract is with the insured, and not with the beneficiary; but, nevertheless, it is for the use of the beneficiary, and there is no reason to say that the incontestability clause is not meant for his benefit, as well as for the benefit of the insured. It is for the benefit of the insured during his lifetime, and upon his death immediately inures to the benefit of the beneficiary. As said by the Supreme Court of Illinois in Monahan v. Metropolitan Life Ins. Co., 283 Ill. 136, 141, 119 N.E. 68, 70, L.R.A.1918D, 1196: 'Some of the rights and obligations of the parties to a contract of insurance necessarily become fixed upon the death of the insured. The beneficiary has an interest in the contract, and as between the insurer and the beneficiary all the rights and obligations of the parties are not determined as of the date of the death of the insured. The incontestable clause in a policy of insurance inures to the benefit of the beneficiary after the death of the insured as much as it inures to the benefit of the insured himself during his lifetime."'

It is almost universally held that an incontestable clause allowing a reasonable time such as a year cuts off all defenses including fraud, except those specifically and expressly enumerated in the clause. The decided cases sustaining this view are numerous, and include cases where the insured has made false statements as to health, age, occupation, etc. The following texts and cases support the foregoing statement: 8 Couch on Insurance, 6957, § 2155; Note, 6 A.L.R. 452; 35 A.L.R. 1492; Apter v. Home Life Ins. Co., 266 N.Y. 333, 194 N.E. 846, 98 A.L.R. 1281; 2 Bacon on Benefit Societies & Life Insurance (3d Ed.) 875; 37 C.J. 544; 5 Cooley's Briefs on Insurance, 4483; Great Southern Life Ins. Co. v. Russ (C.C.A.) 14 F. (2d) 27; Mutual Reserve Fund Life Ins. Ass'n v. Austin (C.C.A.) 142 F. 398, 6 L.R.A. (N.S.) 1064; Great Western Life Ins. Co. v. Snavely, 206 F. 20, 46 L.R.A. (N.S.) 1056 (C.C.A. 9th Circuit); Arnold v. Equitable Life Assur. Soc. (D.C.) 228 F. 157; Russ v. Great Southern Life Ins. Co. (D.C.) 6 F. (2d) 940; Pacific Mutual Life Ins. Co. v. Strange, 223 Ala. 226, 135 So. 477; Dibble v. Reliance Insurance Co., 170 Cal. 199, 149 P. 171, Ann.Cas.1917E, 34; Flanigan v. Federal Life Ins. Co., 231 Ill. 399, 83 N.E. 178; Weil v. Federal Life Ins. Co., 264 Ill. 425, 106 N.E. 246, Ann.Cas.1915D, 974; Ramsey v. Old Colony Life Ins. Co., 297 Ill. 592, 131 N.E. 108; Kanter v. Continental Assurance Co., 251 Ill.App. 272; Indiana Life Ins. Co. v. McGinnis, 180 Ind. 9, 101 N.E. 289, 45 L.R.A. (N.S.) 192; New York Life Ins. Co. v. Adams, 202 Ind. 493, 176 N.E. 146; Commercial Ins. Co. v. McGinnis, 50 Ind.App. 630, 97 N.E. 1018; Kansas Mutual Life Ins. Co. v. Whitehead, 123 Ky. 21, 93 S.W. 609, 13 Ann.Cas. 301; Mutual Life Ins. Co. v. New, 125 La. 41, 51 So. 61, 27 L.R.A. (N.S.) 431, 136 Am.St.Rep. 326; Becker v. Illinois Life Ins. Co., 227 Mich. 388, 198 N.W. 884; Williams v. St. Louis Ins. Co., 189 Mo. 70, 87 S.W.

499; Harris v. Security Life Ins. Co., 248 Mo. 304, 154 S.W. 68, 70 Ann.Cas.1914C, 648; Drews v. Metropolitan Life Ins. Co., 79 N.J.Law, 398, 75 A. 167; Teeter v United Life Ins. Ass'n, 159 N.Y. 411, 54 N.E. 72; Wolpin v. Prudential Ins. Co., 223 A.D. 339, 228 N.Y.S. 78; Strzelicka v. Chicago Fraternal Life Ins. Ass'n, 140 Misc. 517, 250 N.Y.S. 601; Chinery v. Metropolitan Life Ins. Co., 112 Misc. 107, 182 N.Y.S. 555, 556; America Trust Co. v. Life Insurance Company of Virginia, 173 N.C. 558, 92 S.E. 706; Hardy v. Phoenix Mutual Life Ins. Co., 180 N.C. 180, 104 S.E. 166; Metropolitan Life Ins. Co. v. Peeler, 122 Okl. 135, 176 P....

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3 cases
  • Grady v. City of Livingston
    • United States
    • Montana Supreme Court
    • July 1, 1943
    ...the city or any party acting in its behalf could be compelled to bring an action to have the contracts declared void. In Stevens v. Woodmen of the World, supra, this court "When we say that a contract is void as a result of fraud *** all that is meant by such term, *** is that a court of la......
  • Baatz v. Noble
    • United States
    • Montana Supreme Court
    • June 15, 1937
    ... ... Baker v. Union Assurance Society of London, 81 Mont ... 281, 264 P. 132; Stevens v. Woodmen of the World ... (Mont.) 71 P.2d 898 decided May 18, 1937, and not yet ... reported ... ...
  • Marriage of Geertz, In re, 87-551
    • United States
    • Montana Supreme Court
    • May 24, 1988
    ...(2) assumption of such a relationship by mutual consent and agreement; and (3) cohabitation and repute. Stevens v. Woodmen of the World (1937), 105 Mont. 121, 141, 71 P.2d 898, 905. Although the public policy of this state, as demonstrated by the presumption contained within Sec. 26-1-602(3......

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