109 Ark. 400 | Ark. | 1913
John W. Howie, a citizen of the town of Searcy, White County, Arkansas, was a member in good standing of the Eminent Household of Columbian Woodmen, a fraternal insurance society, and held a policy or benefit certificate therein, payable to his wife, Laura O. Howie, who is the plaintiff in this action. He was killed in an encounter with the marshal of the town of Searcy, and this is an action to recover the amount of the benefit, which the officers of defendant society refused to pay, denying liability on tbe part of tbe society on the alleged ground that bis death occurred while be was violating tbe law.
Tbe constitution and by-laws of the society are, according to tbe express terms of tbe benefit certificate, made a part of tbe contract, and they contain tbe following restriction upon tbe liability of tbe society, towit:
“If a guest bolding a covenant shall * * * die in consequence of a duel, or of combat, except in self-defense, * # * or in consequence of violation, or attempted violation, of tbe law, by such guest, * * * tbe covenant shall be void and of no effect, and all payments made or benefits which might have been accrued thereon shall be forfeited without notice or service.”
Tbe defendant on tbe trial of tbe case offered to prove that deceased, Howie, at tbe time be was killed by tbe marshal of the town of Searcy, was violating tbe law of tbe State, in that be was making an unlawful assault upon said marshal, who killed deceased in self-defense.
Tbe court refused to admit tbe testimony, or any of like character, and defendant saved its exceptions. This was error, and calls for a reversal of the case.
Tbe by-laws constituted a part of tbe contract, as before stated, and tbe proof offered by defendant tended to show a violation of tbe contract on tbe part of deceased, which prevented recovery by the beneficiary. Supreme Lodge K. & L. of H. v. Johnson, 81 Ark. 512; Supreme Royal Circle of Friends of the World v. Morrison, 105 Ark. 140.
It is insisted, however, by counsel for plaintiff that the exception is not properly preserved in tbe record, for tbe reason that tbe benefit certificate is not properly brought up. An amendment of tbe record has been made by tbe circuit court and brought here on certiorari, showing that on motion of tbe defendant to make tbe complaint more definite and certain, tbe plaintiff confessed tbe motion and in eompbance therewith filed a copy of tbe certificate with tbe complaint. Tbe record shows, by the filing marks of tbe clerk, that tbe paper was filed as a part of the pleadings before the trial commenced, and the stenographer’s transcript of the evidence, as incorporated in the bill of exceptions, shows that the policy was read in evidence, and also shows a call directing the clerk to copy the same. The paper being on file with the pleadings in the case, the reference to it in the call, was sufficient identification, and authorized the clerk to respond to the call to copy it in the bill of exceptions, which has been done. We are of the opinion that the record was complete so as to preserve this- exception, and that the error of the court is thereby made manifest. For that reason the judgment is reversed and the case remanded for a new trial.
