Brotherhood of Locomotive Firemen & Enginemen v. Cravens

Wood, J., (after stating the facts). 1. Appellant contends that Moss was a necessary party, and that the court erred in overruling its motion to have him made a party. The constitution and by-laws of a fraternal order become a part of the contract of insurance and are binding on the order unless inconsistent with the terms of the benefit certificate. Supreme Royal Circle of Friends of the World v. Morrison, 105 Ark. 140. The clause of th^ Constitution entitling the member to the amount of his certificate when he became afflicted with consumption m its last stage, is not in conflict with any provision of the benefit certificate sued on. Therefore, Cole was entitled to the amount of his certificate when he became afflicted with consumption in its last stage. Under the terms of the contract with appellant, the right of Cole to the amount of his benefit certificate vested the moment he became afflicted with consumption in its last stage. If Cole had died without claiming the amount of his certificate under the “consumption” clause, this would have been a waiver by him of his rights under that clause. In that event, Moss would have been entitled to claim the amount of the certificate. But Cole having the right to the amount and having asserted such right, by suit, at his death the right survived to his estate. Therefore, the court did not err in overruling appellant’s motion to make Moss a party. Under the provisions, of section 6298, of Kirby’s Digest, the court properly designated a special administrator to represent the estate and to continue the litigation for its benefit. Moss, the beneficiary named in the certificate, had no vested interest in the amount of Cole’s certificate. Cole had the right under the by-laws to change the beneficiary at any time, and his act in claiming the amount for himself, under the .“consumption clause,” excluded any rights that Moss otherwise would have had at Cole’s death. See, Ross v. Rogers, 96 Ark. 154; Brotherhood of Locomotive Firemen & Enginemen v. Aday, 97 Ark. 425. 2. The issue as to whether or not Cole had violated the terms of the warranty by the habitual use of intoxicating liquors was submitted to the jury upon instructions in conformity with the law as announced in Metropolitan Life Ins. Co. v. Shane, 98 Ark. 132. The appellant contends that there was no evidence to support the verdict on this issue. While the preponderance of the evidence was against the finding of the jury, it can not he said that there was no evidence to sustain the verdict, The question for us is not whether the verdict is against the weight of the evidence, but whether there is any legaily sufficient evidence to sustain it. St. Louis & S. F. Rd. Co. v. Kilpatrick, 67 Ark. 47; St. Louis, I. M. & S. Ry. Co. v. Wilson, 70 Ark. 136; Scott v. Moore, 89 Ark. 321; F. Kiech Mfg. Co. v. Hopkins, 108 Ark. 578-591. There was such evidence. The judgment is therefore affirmed.