Woodmen of World v. Hall

• Decision Date: 27 May 1912
• Citation: 148 S.W. 526,104 Ark. 538
• Parties: WOODMEN OF THE WORLD v. HALL
• Court: Arkansas Supreme Court

148 S.W. 526

104 Ark. 538

WOODMEN OF THE WORLD v. HALL

Supreme Court of Arkansas

May 27, 1912

Appeal from Poinsett Circuit Court; W. J. Driver, Judge; reversed.

Judgment reversed and case remanded.

Bradshaw Rhoton & Helm, for appellant, Arthur H. Burnett, general attorney.

1. The peremptory instruction should have been given, as there was no evidence to support a verdict. Where the verdict is grossly contrary to law, though in accordance with the instructions of the court, and was totally unsupported by any legal evidence, the judgment will be reversed. 28 Ark. 550; 34 Id. 632; 5 Id. 640; 7 Id. 462; 25 Id. 49.

2. Delivery of a contract is absolutely necessary to its validity. A delivery was necessary by the terms of the certificate, constitution and bylaws while in good health. 106 Tenn. 695; 52 L. R. A. 444. A policy holder must acquaint himself with the constitution and bylaws of a mutual association, and is presumed to know them. 43 L. R. A. 395.

3. Where the laws of a fraternal society provide that no liability for benefits upon death shall attach until initiation, such initiation is essential to recovery notwithstanding the applicant may have died after the delivery of the certificate and after the payment of the first payment before initiation. 122 S.W. 1139; 82 Tex. 301; 77 Neb. 282; 107 Minn. 12.

Where a benefit certificate embodies the conditions of the constitution and bylaws of a benefit society, or makes them a part thereof, such certificate does not become operative until all such conditions are complied with. 76 Mo.App. 573; 28 F. 705; 30 F. 545; 49 So. 883; 52 Ark. 202; 53 Ark. 255; 80 Ark. 419; 81 Ark. 512; 94 Ark. 499; 96 Ark. 154; 66 Ark 612.

Where it is stipulated that a certificate is not binding until delivered, and the manner of delivery is stipulated in the contract, the policy is not operative until all the requirements with reference to delivery have been complied with. 35 Ind.App. 89; 106 P. 328; 74 S.W. 853; 73 N. E. (Ind.) 1041; 82 S.W. 966; 51 Fed, 689; 59 S. E. (Ga.) 283; 6 Bush 450; 90 S.W. 544; 93 S.W. 659; 18 Minn. 448; 33 S.E. 536.

4. An untrue statement or a false warranty in an application which becomes a part of and the basis of the contract, renders the certificate void. 54 N.J.L. 490; 25 A. 367; 30 N.Y.S. 205; 130 S.W. 858; 113 Mo.App. 473; 152 Ill.App. 92; Id. 242; Id. 155; 7 S.D. 214; 110 N.W. 452; 20 A. 873; 89 P. 929; 58 Ark. 528; 96 Ark. 499; 72 Ark. 620.

5. Under the terms of the contract, no one has authority to waive any of the provisions thereof. 152 Mass. 272; 76 Wis. 450; 45 Mo.App. 426; 14 Daly 38; 106 P. 328; 71 S.E. 130; 127 N.W. 768; 109 N.W. 158; 80 Ark. 419; 104 Me. 355; 149 Mich. 467.

J. T. Coston, for appellee.

1. Appellant waived all other grounds of forfeiture when it denied liability on the sole ground of false answers in the application. 3 Cooley, Ins. Briefs, 2680; 97 N.W. 681; 60 N.W. 448; 51 N.W. 989; 67 Ark. 588.

2. The testimony tends to show that the policy was delivered to Hall in person; yet, if it was delivered to Dixon, the clerk of the camp, as a matter of convenience, such delivery was a delivery to Hall. 1 Cooley's Briefs, 450; 93 N.W. 704; 87 N.W. 905. If it be true, as contended by appellant, that Hall was never obligated and initiated, yet he was treated as a member by the acceptance of his money, the issuance to him of the policy, the collection of the first month's assessment, and by allowing the widow to make proof of death, issuing to her an official receipt which on its face confessed him to be a member, and then denying liability on other grounds entirely. The obligation, etc., was waived. 87 N.W. 904; 62 Ark. 353; 113 S.W. 54; 50 N.W. 1023; 42 P. 635.

A subordinate lodge may waive a forfeiture resulting from a violation of the society's bylaws. 3 Cooley's Briefs, 2495. The Supreme Lodge is presumed to know all the facts affecting the validity of the policy, and it is too late now to raise the question that Hall did not pay his first month's assessment, or that he was not duly initiated, or that his policy was illegal. 58 P. 597; 120 Pa. 533.

3. The fact that deceased was in the saloon business and that he drank liquor was well known in the community and to the physician who wrote out his application and his answers. His business and drinking habits was called to the attention of the local lodge and discussed. Appellant can not now complain. 65 Ark. 62; 3 Cooley, 2645.

OPINION

FRAUENTHAL, J.

This is an action instituted by Etta May Hall to recover upon a certificate of insurance which she alleged was executed upon the life of her husband, and in which she is named as beneficiary. The appellant is a mutual benefit association, and it resisted recovery upon the ground that the alleged certificate was not executed and delivered in accordance with the constitution and by-laws of the order, and, for that reason, never became effective as a contract; and also because the assured had, in his application for the insurance and in his medical examination, made false warranties, which avoided the certificate in the event it had been duly executed and become effective. The order consisted of a supreme body, known as the Sovereign Camp, which issues certificates of insurance, and of numerous subordinate camps or lodges, one of which is located at Fisher. On April 8, 1910, C. H. Hall, the husband of appellee, made written application for membership in the order and for the issuance of a certificate of insurance. In accordance with the constitution and bylaws of the order, his application was balloted upon by the local camp or lodge at Fisher, and was approved. Thereafter, a medical examination was made of the applicant by the camp physician. In the written application he stated:

"My occupation is farmer. * * * I am neither, directly or indirectly, engaged in any of the following prohibited occupations: * * * saloonkeeper, bartender, nor engaged in retailing of intoxicating liquors as a beverage, nor employed in making, compounding, distilling, rectifying, or brewing of malt, spirituous, vinous, or intoxicating liquors, or in the business of distributing or delivering of the same."

In his medical examination, he made the following answers to the following questions: "Do you now use wines, spirits, or malt liquors?" to which he answered, "No." "Were you ever intoxicated?" to which he answered, "No."

In the application he warranted the truth of these statements made both in the application and in the medical examination, and agreed that the liability of the sovereign camp for the payment of benefits should not begin until after the application and medical examination had been duly approved and accepted and certificate issued and personally delivered to him while in good health, "and until I shall have been obligated in due form and all the requirements of section 58 of the constitution of said order have been complied with." Section 58 of the constitution provides that the liability of the sovereign camp for the payment of benefits on the death of a member shall not begin until after his application shall have been accepted and certificate issued and he shall have "first paid all entrance fees; second, paid one or more advance monthly payments of assessments and dues known as sovereign camp fund, also signed his certificate and acceptance slip attached thereto; third, paid the physician for medical examination; fourth, been obligated or introduced by the camp or by an authorized deputy in due form; fifth, had delivered to him in person his beneficiary certificate while in good health."

In the certificate sued on it was provided that the articles of incorporation, the constitution and laws of the order, the application for membership, and the medical examination should constitute the contract between the order and the member. It also provided that it was issued in consideration of the representations, warranties, and agreements made by the applicant, and that there should be no liability under the certificate until all of the requirements named in said section 58 of the constitution should be complied with. One of the articles of the constitution and bylaws provided that saloonkeepers, bartenders, and persons engaged in the retailing of intoxicating liquors should not be admitted to the order. Another article provided that "no officer, employee, or agent of the sovereign camp, or of any camp, has the power, right, or authority to waive any of the conditions upon which the beneficiary certificates are issued, or to change, vary, or waive any of the provisions of this constitution, or of these bylaws."

The application and medical examination were thereafter forwarded to appellant at its home office at Omaha, Nebraska, and the certificate of insurance was executed by appellant's supreme officers on April 18, 1910, and sent by mail to the clerk of the local camp at Fisher, but the exact date of its receipt by him does not appear from the testimony. It does however, appear that the clerk of the local camp retained the certificate in his possession until some time in July, 1910, when he mailed it to appellee. The appellant, C. H. Hall, died on June 1, 1910. There is a conflict in the testimony as to whether or not he signed the certificate and acceptance slip attached thereto as provided by the laws of the order and the certificate; and there is also a conflict in the testimony as to whether or not he paid the first or any monthly advance payment of assessment and dues as required by such constitution and the certificate. The clerk of the local camp testified that on June 3, 1910, and after the death and funeral of said Hall, his brother came to him and signed the name of C. H. Hall to the certificate and acceptance slip and at...