Robinson v. Knights & Ladies of Security

172 P. 116 | Or. | 1918

MoBEIDE, C. J.

The basic issues raised by the defense are: That the deceased, by reason of his having habitually failed to pay his dues before the last day of the current month, stood suspended; that his payments within sixty days did not reinstate him by reason of the fact that he was at the time of such payments a habitual chloroform tippler; that plaintiff cannot contradict the medical certificate and proof of death furnished to the head office, by showing that deceásed was not in fact addicted to the use of drugs, and that such certificate and proof were founded upon a mistaken idea as to. the facts, or the result of inadvertence. We will consider these in the order named and thereafter consider certain objections to instructions of the court, which are not set forth in the foregoing statement.

1, 2. The evidence of decedent having been a chloroform tippler was contradictory; that of the plaintiff tending strongly to negative the practice by bim of any such injurious habit, and indicating that he was a sober and industrious citizen; in fact, we may say that such was probably the effect of the weight of the evidence, although there was some evidence to the contrary; that he had been using chloroform on the evening before his death is indicated by the testimony of his physician, but there was no autopsy and little to indicate that the use of chloroform was a fixed habit. No one ever saw him use chloroform or knew that he used it. The fact that the physician detected the odor of chloroform in the matter vomited by deceased on the evening before his death, and that he had some of the drug in his possession, only indicated a single use of the drug, which he might have taken as a remedy for some ailment he was suddenly stricken with, and a diagnosis of the cause of his death as the result of chloroform tippling was ridiculous in the extreme. That a physician who had never seen the deceased before being called upon to attend him, and who knew nothing of the history of the case, who never saw him alone but twice in his life, should fill out such a certificate and induce the stricken wife of deceased to ignorantly assent to it, is little to his credit. Is the plaintiff bound by the certificate and proof of death? She can be bound only in one way and that is by estoppel, and no estoppel is pleaded. The answer nowhere refers to the death certificate, or the affidavit furnished by the beneficiary. An estoppel must be pleaded in order to be available, so this defense may be laid out of the case. If the deceased was not a chloroform tippler, his payment of dues within sixty days reinstated him, and he was a member in good standing when he died.

3-5. The plea of tender is insufficient. It is alleged in the answer that the defendant upon being informed of the facts, tendered to the plaintiff all dues which deceased had paid in and that she accepted them. It is not alleged that the sum was tendered or accepted in satisfaction of plaintiff’s demand, or that she aceepted it as an accord and satisfaction. Under the circumstances pleaded, the acceptance of the sum tendered did not constitute a waiver by plaintiff of her demand, and in this state a waiver must be pleaded with the same particularity as an estoppel, to which it is closely akin.

6. Error is predicated upon the following instruction:

“Yet if he was in bad health or if he was addicted to the use of alcoholic drinks, narcotics or drugs, and the head officers of the defendant society or its National Council at the time of the payment of assessments actually knew or had actual notice of his condition and it (his dues) was paid by Eobinson and accepted by them, with that notice or knowledge, he would be reinstated notwithstanding his physical condition.”

“But if they did not your verdict must be for the defendant.”

The excerpt quoted, which formed part of a larger paragraph, correctly states the law in the abstract. We find no evidence that the defendant and head officer knew anything about deceased’s condition, therefore the instruction should not have been given. In view, however, of the very fact that there was an utter absence of evidence upon this point, and the whole testimony was so brief that any juryman of ordinary capacity would readily retain the whole of it in his memory, we do not believe they were misled by it. We might add that the evidence of his having been in ill health or addicted to the use of drugs, was so slight it is difficult to believe that any jury would have found with the defendant upon this issue. Article 7, Section 3, of our amended Constitution, authorizes us to disregard technical errors of this character and give judgment according to the justice of the case; therefore, the judgment of the Circuit Court is affirmed.

Affirmed.

Burnett, Benson and Harris, JJ., concur.