Woodmen of the World Life Ins. Soc. v. Chapman

• Decision Date: 29 April 1941
• Docket Number: 29653.
• Citation: 113 P.2d 600,189 Okla. 69,1941 OK 148
• Parties: WOODMEN OF THE WORLD LIFE INS. SOC. v. CHAPMAN.
• Court: Oklahoma Supreme Court

113 P.2d 600

189 Okla. 69, 1941 OK 148

WOODMEN OF THE WORLD LIFE INS. SOC. v. CHAPMAN.

No. 29653.

Supreme Court of Oklahoma

April 29, 1941

Rehearing Denied May 27, 1941.

Syllabus by the Court.

1. In an action of legal cognizance where there is any competent evidence which reasonably tends to support the findings and the verdict of a jury and such findings and verdict have received the approval of the trial court, a judgment based thereon will not be disturbed on appeal.

2. The power accorded to a fraternal benefit society to amend its constitution and by-laws with reference to contracts of insurance does not give the society a right to adopt a by-law which will divest, impair or disturb rights already vested in its members.

3. The granting or refusing of a continuance on account of the absence of counsel is a matter of discretion with the trial court, and, unless it appears that such discretion was abused to the prejudice of the substantial rights of a litigant, the action of such court will not be disturbed upon appeal.

Appeal from District Court, Ottawa County; Wm. M. Thomas, Judge.

Action by Gussie P. Chapman against the Woodmen of the World Life Insurance Society to recover upon a double indemnity benefit rider attached to a life certificate. From a judgment for plaintiff, defendant appeals.

Affirmed.

Henry R. Duncan, of Tulsa, for plaintiff in error.

Frank Nesbitt and Nelle Nesbitt, both of Miami, for defendant in error.

OSBORN Justice.

This action was instituted in the District Court of Ottawa County by Gussie P. Chapman, hereinafter referred to as plaintiff against Woodmen of the World Insurance Society, hereinafter referred to as defendant, to recover upon a double indemnity benefit rider attached to a life insurance certificate issued to Junius J. Chapman, now deceased, of which Gussie P Chapman was named the beneficiary. The cause was tried to a jury and a verdict was returned in favor of plaintiff, from which defendant has appealed.

On January 7, 1909, defendant issued its certificate of insurance upon the life of Junius J. Chapman in the sum of $2,000. Thereafter on April 1, 1926, said certificate was surrendered and defendant issued another certificate of insurance in the sum of $2,000 in lieu thereof, and on April 23, 1929, in consideration of additional dues defendant issued and attached to the last mentioned certificate of insurance as a part thereof a "double indemnity benefit" rider providing in part as follows: "The Association will pay Four Thousand Dollars, less any indebtedness to the Association hereon, in lieu of the face amount of said certificate, upon receipt of due proof that the death of the member resulted, directly and independently of all other causes, from bodily injury effected solely through external, violent and accidental means and within sixty days after sustaining such injury ***"

The certificate holder, Junius J. Chapman, died on July 17, 1936 and thereafter the company paid to plaintiff, as beneficiary, the face amount of said policy, but denied liability under the double indemnity benefit clause, said payment having been accepted by plaintiff without prejudice to the presentation of further claims under the terms of said policy.

Plaintiff alleged that the death of the certificate holder resulted from sunstroke and that by reason thereof defendant became liable to her for the benefits agreed to be paid under the double indemnity benefit rider of said certificate.

In this jurisdiction it is well settled that death from sunstroke is "an 'effect resulting from bodily injuries sustained through external, violent, and accidental means"' and within the terms of a policy insuring against the effects resulting directly, and exclusively of all other causes, from bodily injury sustained solely through external, violent and accidental means. Maryland Casualty Co. v. Hazen, 182 Okl. 623, 79 P.2d 577; Provident Life & Acc. Ins. Co. v. Green, 172 Okl. 591, 46 P.2d 372; Continental Cas. Co. v. Clark, 70 Okl. 187, 173 P. 453, L.R.A.1918F, 1007.

Defendant concedes that it would be liable under the double indemnity feature of the certificate if the death of deceased resulted from sunstroke, but contends that no competent evidence was introduced from which the jury could properly determine that death resulted from sunstroke, and that therefore the verdict of the jury is wholly unsupported by competent evidence. A review of the record, however, demonstrates that this contention is erroneous.

It is next contended that the trial court erred in striking certain portions of defendant's answer wherein it was sought to defend on the ground of a breach of warranty as to physical health. In this connection it was alleged that in plaintiff's application to procure the certificate providing for double indemnity, deceased warranted that he was "in good sound bodily health" and that there was nothing in his habits or condition likely to impair his health or shorten his life. Defendant alleged as follows "(5) ** that at the time the said Junius J. Chapman became a member of said society and at the time he applied for exchange of certificate on the 3rd day of April, 1929, and when said Junius J....