Old American Insurance v. Jackson

Kirby, J., (after stating tlie facts). It is contended that the judgment is not supported by the evidence, which shows that the answers to the questions relative to insured’s health made in his application were warranties and false; that he was suffering, at the time of application made for insurance, with, and had been treated for, tuberculosis, of which disease he later died. The Aveight of the evidence is in favor of the falsity of these warranties, it is true, hut the testimony is not undisputed, and the jury, upon conflicting testimony, have found against the appellant, and its verdict will not be disturbed. It is next contended that the court erred in refusing to admit the proof of the by-laws of the association by its president, Mr. Judd, and in excluding his testimony regarding the amount of the assessment recoverable thereunder and also in refusing to give its requested instruction D, limiting the amount of the recovery to $575.70. Appellee insists that, it not being specially pleaded in the ansAver, the by-laAvs relating to limiting the amount of the recovery to the one assessment producing less than the amount expressed in the policy, could not he considered. Section 3, article 5, of the by-laws offered to be proved by the president of the company, provides: “All policies shall he placed in series in numbers as the hoard of directors or the president shall designate, and no policy-holder shall he entitled to a greater benefit or a greater policy value than the yield Avhich one single assessment on the series in Avhich he was classified Avill produce in the month succeeding the approval of the claim of the policy-holder or beneficiary. This shall be the maximum limit of liability of the company. The SAVorn statement of the secretary or assistant secretary as to the yields shall be the basis of settlement under this clause. This clause shall apply to all policies issued by this company or association.” The president, Mr.-Judd, also stated in his deposition which was excluded that' the amount of $575.70 was yielded by the assessment of the twenty thousand series in which Buck Jackson was classified in the month succeeding his death, and exhibited the sworn statement of the assistant secretary of the company showing that sum. The answer expressly denied every material allegation of the complaint except such as are specifically admitted, one of which is that the company would insure the life of the said Buck Jackson in the sum of $1,000 to be paid in the case of his death to Jener Jackson upon proof of death, no admission of which is made in the answer. It also alleged that the policy, application and by-laws of the said defendant constituted the contract between the company and the insured, and, although this allegation is in a clause relating to the warranties made in answer to questions in the application as to the insured’s good health, it was nevertheless such an allegation as entitled the company to introduce in support of it the provisions of the by-laws relating thereto, which the policy also provides shall constitute a part of the contract of insurance. It had been better pleading to deny specifically the liability for the payment of the maximum amount expressed in the policy and to set up or allege liability only to the payment of the amount of the one assessment as provided in the by-laws. But, if the answer was regarded indefinite and uncertain, the defect could have been remedied by a motion to make it more definite and certain. The court erred in refusing to admit the proof of the by-laws of the association and also in excluding the president’s statement that the yield of the assessment for which the company was liable to payment under the policy, upon the death of the insured, was $575.70. This court has often held that, although a certified copy of the charter under which a corporation is organized is the best evidence of its existence, it may be established by other and parol testimony. Kelley v. Stern Pub. & Nov. Co., 147 Ark. 383, 227 S. W. 609; Stur-divant v. Ka-Dene Medicine Co., 169 Ark. 535, 275 S. W. 921; Amer. Trnst. Co. v. Netherlands-Amer. Mtg. Bk., 169 Ark. 869, 276 S. W. 1010. Under the same principle as well as the authority of the ruling in Knight v. American Insurance Union, 172 Ark. 303, 228 S. W. 395, it 'was competent to prove the by-laws of the corporation by its president, who also could testify to the amount of the yield of the assessment for which the company was liable to payment under the terms of the policy, and this without regard to whether his testimony exhibiting the affidavit and. certificate of the 'assistant secretary showing the amount of the assessment was admissible or not. If this testimony erroneously excluded had been admitted, appellant was entitled to have its requested instruction D given also. For the errors designated the judgment is reversed, and the'cause remanded for new trial.