Woodmen of World v. Jackson

• Decision Date: 05 November 1906
• Citation: 97 S.W. 673,80 Ark. 419
• Parties: WOODMEN OF THE WORLD v. JACKSON
• Court: Arkansas Supreme Court

97 S.W. 673

80 Ark. 419

WOODMEN OF THE WORLD v. JACKSON

Supreme Court of Arkansas

November 5, 1906

Appeal from Union Circuit Court; Charles W. Smith, Judge; reversed.

Action by Alice R. Jackson against the Woodmen of the World, a fraternal insurance society, to recover the sum of $ 500 on a benefit certificate or policy issued to the plaintiff's husband, W. L. Jackson, in which she was named as beneficiary.

The plaintiff recovered judgment below, and the defendant appealed.

Judgment reversed and cause remanded.

Marsh & Flenniken and Bradshaw, Rhoton & Helm, for appellant.

1. The burden was on plaintiff to show that Jackson had complied with the laws of the order, either by appearing in person, or by sending the written application for reinstatement. Her failure to produce evidence was an admission against her. 1 Greenleaf, Ev. (16 Ed.), § 195. The laws of appellant were proved; also the suspension, failure to reinstate as provided by the laws, Jackson's illness at the time of his attempted reinstatement. The evidence therefore does not sustain the verdict. 28 Ark. 550; 34 Ark. 632; 7 Ark. 462; 15 Ark. 540; 20 Ark. 443; 24 Ark. 224.

2. The statement of Alice Jackson, made to the physician, as to the duration of deceased's illness was admissible as being made against interest. Bradner on Ev. 456. 1 Greenleaf, Ev (16 Ed.), §§ 770a, 171. Declarations of the deceased to the physician as to the duration of his illness were admissible for the same reason. 74 Ark. 104; 37 Ark 580; 60 Ark. 26.

3. The cause should be reversed for errors and inconsistencies in the instructions. Instructions should harmonize; otherwise they confuse. 59 Ark. 104; 55 Ark. 397.

R. G Harper and Thornton & Thornton, for appellee.

1. There was sufficient evidence to support the verdict.

2. The testimony of the physician concerning what was told him as to W. L. Jackson's sickness was properly excluded. The record does not disclose what statements were made to him, nor was any effort made to prove what they were. Moreover, at the time they are alleged to have been made, Jackson was still alive. No statements made then could have been against interest.

3. Appellant's objections to instructions, being general, were not sufficient. It should have made specific objection, or offered a correct instruction. 66 Ark. 48; 65 Ark. 624; 71 Ark. 317; 50 Ark. 394; 69 Ark. 637; 60 Ark. 619; 93 S.W. 562.

If the verdict is right on the whole case, this court will not reverse, even if improper instructions were given. 44 Ark. 556; 19 Ark. 667; 43 Ark. 296; 46 Ark. 542.

OPINION

MCCULLOCH, J.

W. L. Jackson, the husband of plaintiff, became a member of appellant society and received the policy sued on September 28, 1901, and died on November 25 of the same year. He paid the September assessment in the beneficiary fund, but failed to pay, within the month of October, assessment number 133 called for that month, and he stood suspended on that account.

The laws of the society, which formed a part of the contract, provide that if the member "fails to pay any of the above assessments or dues on or before the first day of the month following, he shall stand suspended, and during such suspension his beneficiary certificate shall be void."

The question whether Jackson paid the October assessment within due time depended entirely upon the testimony of the clerk of the local camp, as the subordinate body is termed, of which Jackson was a member. No other testimony on the subject was introduced by either party. He testified that the assessment was not paid on or before the first day of November, and that he made report to the sovereign clerk of the suspension of the member. He further testified that some time between the first and twentieth days of November, while he was at El Dorado, the county seat, on business, the amount of Jackson's assessment, number 133, was left at his (witness') home by Jackson's son, and that immediately on his return home, which was about November 20, he forwarded the amount to the sovereign clerk. The witness first stated that when the money was left there he was attending the circuit court at El Dorado, and some confusion in his testimony arose when his attention was called to the fact that circuit court was in session at El Dorado in October, not in November, but he then explained the discrepancy by saying that he was at El Dorado on other business, and was not attending court at that time. We do not think that this slight discrepancy, which was fully and reasonably explained, warranted the jury in rejecting his testimony entirely. He testified positively that the payment was not made until after the first day of November, and after he had reported the suspension. He further said that the money was left at his home "maybe two weeks or not so long" before Jackson's death, which is admitted to have occurred on the twenty-fifth day of November. The plaintiff made no effort to show by the member of her family who paid the money, or otherwise, that it was left at the home of the clerk on or before the first day of November. His testimony is uncontradicted, and the court and jury should have accepted as true his statement as to the time of payment.

A section of the laws of the society with reference to reinstatement of a suspended member is as follows:

"Sec 115. Should a suspended member personally appear and apply for re-instatement within three months from the date of his suspension and pay all arrearages, if in good health and is not addicted to the excessive use of intoxicants or narcotics, he shall be restored to membership and his beneficiary certificate again becomes valid as soon as said payment shall have been received and recorded by the clerk of his camp. If a delinquent member does not appear in person to pay his arrearages, he must send to the clerk a written statement on the official form furnished by the sovereign camp that he is in good health, and is not addicted to the excessive use of intoxicants or narcotics, as a condition precedent to reinstatement, and waiving all rights thereto if this...