SIMS vs. JEFFERSON STANDARD LIFE INS. CO. (No. 6968.)* (Court of Appeals of Georgia.) INSURANCE-NONPAYMENT OF PREMIUM NOTE-FORFEITURE OF POLICY. Ordinarily the failure of the insured to pay at maturity a promissory note given by him, and accepted by the insurer, for a premium on his policy of life insurance, will not ipso facto cause a forfeiture of the policy, although there is a stipulation in the note that if it is not paid at maturity the policy will be forfeited, where there is no provision in the policy itself that it will be avoided for the nonpayment of any note given for premium. In such a case, when the policy lapses on account of the nonpayment of the note, before the policy can be avoided the unpaid note must be returned to the insured. The insurer cannot keep the note and avoid the policy. (a) Where, however, the unpaid note contains the express stipulation that "if not paid at maturity it will automatically cease to be a claim against the maker," the policy may be avoided without returning the note. (For other cases, see Insurance, Cent. Dig. §§ 897, 898; Dec. Dig. § 349[3].) Error from City Court of Carrollton; Jas. Beall, Judge. Action by Mary Sims against the Jefferson Standard Life Insurance Company. Judgment for defendant, and plaintiff brings error. Affirmed. S. Holderness, of Carrollton, for Plaintiff in Error. Bryan & Middlebrooks, of Atlanta, and Boykin & Boykin, of Carrollton, for Defendant in Error. * Decision rendered, June 30, 1916. 89 S. E. Rep. 445. Syllabus by the Court. O'CONNOR vs. KNIGHTS AND LADIES OF SECURITY. (No. 30763.)* (Supreme Court of Iowa.) 1. INSURANCE-WAIVER EFFECTING TO AVOID POLICY-IMPLIED WAIVER. In an action on a policy of benefit insurance, where the association's constitution and by-laws provided that premiums and assessments are due on the first day of each month, and that if not paid before the last day of the month the policyholder is automatically suspended without notice, and that one suspended is not entitled to reinstatement unless in good health, where the plaintiff's check, dated February 16th, at which time he was in good health, was not received by the defendant * Decision rendered, June 29, 1916. 158 N. W. Rep. 761. until March 5th, at which time he was dangerously ill, no inquiry being made touching the health of the insured and no notice being given the insured that the check arrived too late, and the company knowing or having reason to believe that the check was not sent for the purpose of reinstatement, but to comply with the contract, there being no evidence of fraud on the part of the insured, by accepting the check as far as the February payment and sending him a receipt therefor and by subsequently receiving payments in months following, defendant elected to waive the provisions of the policy and plaintiff had the right to assume that the contract still existed; it being a waiver of "failure to pay within time." (For other cases, see Insurance, Cent. Dig. §§ 1909-1913, 1915, 1916; Dec. Dig. 755[3].) 2. INSURANCE-FORFEITURE OF POLICY-REINSTATEMENT. Where a policy of benefit insurance provided for forfeiture of the contract in case of default in payment of monthly premiums, upon being suspended, in order to be reinstated upon terms of the policy it would be incumbent upon the assured to make a showing as to his health, and any fraud practiced touching this matter or concealment on his part of a fact that would prevent reinstatement would be fatal to his right. (For other cases, see Insurance, Cent. Dig. § 1924; Dec. Dig. § 761.) 4. INSURANCE-BY-LAWS AND CONSTITUTION-AGENTS. Though the by-laws and constitution of a benefit association provided that the officers of the local councils were the agents of the insured, and that their acts were not binding upon the association, as such provisions are made a part of the contract of insurance, the local council and its officers are the agents of the national association in receiving applications for membership, and collecting fees, charges and assessments, since a person's character must be determined from what he is, and not what he is called. (For other cases, see Insurance, Cent. Dig. § 1838; Dec. Dig. § 697.) 5. INSURANCE-FORFEITURE OF POLICY-WAIVER. Although, where, by the terms of the policy of insurance, a member's delinquency ipso facto works a suspension and forfeiture of rights under the policy, no affirmative action is required by the company, and immediately upon the delinquency happening the membership is terminated; the provision, being made for the benefit of the insurer, may be waived by an intention on the part of the company not to insist upon an enforcement of that provision of the contract, and a waiver of the right to insist upon payment within the stipulated time holds the original contract in force and is not the making of a new contract. (For other cases, see Insurance, Cent. Dig. § 1907; Dec. Dig. § 755[1].) Appeal from District Court, Chickasaw County; W. J. Springer, Judge. Action to recover amount alleged to be due on a benefit certificate issued on the life of plaintiff's husband. Judgment for the plaintiff in the court below. Defendant appeals. Affirmed. M. E. Geiser, of New Hampton, for Appellant. POWER vs. MODERN BROTHERHOOD OF AMERICA. (No. 20020.)* (Supreme Court of Kansas.) 1. INSURANCE-TRIAL-FRATERNAL BENEFICIARY INSURANCE-ACTIONS-INSTRUCTIONS. In an action upon a beneficiary certificate containing a clause that the certificate should be void in case of insured's death by "suicide, sane or insane," the undisputed facts showed that deceased shot himself through the head with a pistol, almost immediately after having declared his intention to kill himself, and that his death was the result of the pistol shot. Held, an instruction that, if the jury believed from the evidence that the mental faculties of the deceased "were so obscured and deranged that he did not understand that the firing of said shot was likely to or would result in his death," his act was in the nature of an accident, and the plaintiff would be entitled to recover notwithstanding the provisions of the certificate, is erroneous: (a) Because it excludes all consideration of the intention with which the act was committed, and includes within the definition of "accident" an act of self-destruction which if committed by a sane person with intent to take his life would be suicide. (b) Because there was no evidence upon which the instruction could be based. (For other cases, see Insurance, Cent. Dig. § 2010; Dec. Dig. 826[2]; Trial, Cent. Dig. § 604; Dec. Dig. § 252[14].) 2. INSURANCE-FRATERNAL BENEFICIARY INSURANCE-ACTIONS-EVIDENCE. It is held that the finding of the jury that the pistol was discharged accidentally and unintentionally is contrary to the undisputed facts shown by the evidence. (For other cases, see Insurance, Cent. Dig. § 2006; Dec. Dig. § 819[4].) 3. INSURANCE-FORFEITURE-SUICIDE, SANE OR INSANE. In this case it is held that, as the unmistakable extrinsic evidence of deceased's intention to take his own life and the other known facts are inconsistent with the theory of accidental death, or that deceased did not understand the natural result of his acts, the case is controlled by the decision in Hart vs. Modern Woodmen, 60 Kan. 678, 57 Pac. 936, 72 Am. St. Rep. 380, and therefore the clause in the certificate limiting liability in case of "suicide, sane or insane," prevents a recovery. (For other cases, see Insurance, Cent. Dig. § 1956; Dec. Dig. § 788[1].) Appeal from District Court, Wyandotte County; Frank D. Hutchings, Judge. Action by Bertha M. Power against the Modern Brotherhood of America. From a judgment for plaintiff, defendant appeals. Reversed. David F. Carson, of Kansas City, and Sam Sparrow and James R. Page, both of Kansas City, Mo., for Appellant. J. H. Brady. E. H. Henning, Junius W. Jenkins, and Charles E. Thompson, all of Kansas City, for Appellee. * Decision rendered, July 8, 1916. On rehearing, July 29, 1916. 158 Pac. Rep. 870. Syllabus by the Court. KIRKPATRICK vs. ABRAHAMS ET AL.-NATIONAL COUNCIL OF KNIGHTS AND LADIES OF SE CURITY vs. FARRELLY. (No. 20816.)* (Supreme Court of Kansas.) 1. INSURANCE-FRATERNAL BENEFIT SOCIETIES-ORGANI ZATION. Since the act of 1898, providing for the organization and regulation of fraternal beneficiary societies, took effect, constitutions of societies organized before 1898 and continuing to do business under the act without reincorporation are to be treated in the light of articles of association or charters under the act, so far as they relate to the same subjects, including provisions relating to plan of organization and provisions for amendment. (For other cases, see Insurance, Cent. Dig. § 1833; Dec. Dig. § 693.) 2. INSURANCE-FRATERNAL BENEFIT SOCIETIES-CONSTITUTION-AMENDMENT. The plan of organization of such a society, set forth in its constitution, cannot be amended by a simple by-law not enacted according to the provision of the constitution relating to its amendment. (For other cases, see Insurance, Cent. Dig. § 1833; Dec. Dig. § 693.) 3. INSURANCE-FRATERNAL BENEFIT INSURANCE-CONSTITUTION AND BY-LAWS. Section 56 of the by-laws of the Knights and Ladies of Security, a fraternal beneficiary society of the character described in paragraph 1 above, providing that appointments by the National President to committees the members of which become ex officio members of the supreme legislative body shall not become effective until approved by the National Executive Council, contravenes section 2 of article 4 of the constitution of the order, giving the president unconditional power to make such appointments. (For other cases, see Insurance, Cent. Dig. § 1833; Dec. Dig. § 693.) West, J., dissenting. Original application by W. B. Kirkpatrick, as National President of the Knights and Ladies of Security, for writ of mandamus to John Abrahams and others, and application by the National Council of the Knights and Ladies of Security, for writ of quo warranto to H. P. Farrelly. The applicant in the mandamus proceeding held entitled to writ of mandamus, but necessity therefor obviated by compliance by defendants with demands of plaintiffs, and costs taxed to the National Council, the plaintiff in the quo warranto proceeding. Edwin D. McKeever, of Topeka, for Plaintiffs. Blair, Magaw & Lillard and A. M. Harvey, all of Topeka, for Defendants. * Decision rendered, July 8, 1916. 159 Pac. Rep. 13. Syllabus by the Court. FARRAGHER vs. KNIGHTS AND LADIES OF SECURITY. (No. 20282.)* (Supreme Court of Kansas.) 1. INSURANCE-FRATERNAL BENEFIT INSURANCE-ACTIONS -EVIDENCE. In an action to recover upon a beneficiary certificate, the defense was that the insured made false and fraudulent representations in his answers to questions asked by defendant's medical examiner, in which deceased stated that he had not consulted or been treated by any physician or surgeon during the previous five years for any illness, disease, or injury, and had never undergone any surgical operation. Within a year previous he had been circumcised by a physician, who on later occasions dressed the wound, and who testified that, in his opinion, the insured was in perfect health at the time, and that the circumcision was performed for sanitary purposes. There was proof that the death of insured resulted from a disease which had no relation to the circumcision, and physicians and surgeons testified that they did not regard circumcision as an operation. Defendant's medical examiner testified that, if he had been informed of the fact, he might not have considered it serious enough to mention in the application. Upon these facts, and others stated in the opinion, the finding of the trial court that defendant failed to show the intentional suppression of any fact or circumstance which deceased naturally supposed would tend to influence defendant in passing upon his application, and that plaintiff is entitled to recover, will not be disturbed. (For other cases, see Insurance, Cent. Dig. § 2007; Dec. Dig. § 819[2].) 2. INSURANCE-FORFEITURE-MISREPRESENTATIONS IN AP PLICATION. It will not do to place an absolutely literal interpretation on the provisions in an application and policy of life insurance with respect to untruthful answers. There must not be evasion, fraud, or suppression of facts; there must be absolute good faith in the conduct of the applicant; but where the evidence shows there has been no evasion, no purpose to conceal any fact which the applicant would naturally suppose was contemplated by the questions, and where the company issuing the policy could not have been prejudiced by the answers, and the death of the insured resulted from causes wholly unrelated to the matter about which the alleged untruthful answers were given, a defense based upon their untruth cannot avail. (For other cases, see Insurance, Cent. Dig. § 1859; Dec. Dig. § 723[2].) Appeal from District Court, Labette County. Action by Margaret Farragher against the Knights and Ladies of Security. Judgment for plaintiff, and defendant appeals. Affirmed. W. W. Brown and James W. Reid, both of Parsons, for Appellant. John Madden and C. E. Cooper, both of Parsons, for Appellee. * Decision rendered, July 8, 1916. 159 Pac. Rep. 3. Syllabus by the Court. |