144 Ark. 114 | Ark. | 1920
Lead Opinion
(after stating the facts). It is first sought to uphold the judgment on the ground that the insured was not employed in a mine at the time of his death, and that his policy was not forfeited under section 43 of the constitution which is copied in the statement of facts.
We can not agree with counsel in this contention. The foreman, under whom the insured worked, stated in positive terms that he was engaged in ditching for a week or ten days before he was killed and that before this time he was working in the mines. According to his testimony they were digging ditches for the drainage of water to pass out of the mines.
Another witness testified that the insured had been engaged in digging and loading ore in cars; that the bauxite ore was first loosened by blasting and was then loaded into the cars by the insured and other persons. In this way a pit between ten and fifteen feet deep was dug in the ground. A track was laid down in it and the insured and others would load the ore into the cars on the track. The cars would then be drawn out of the pit. When the blasts were made the workmen would be notified so that they could get out of the way. It is true the mines were not under the ground, but the undisputed testimony shows that the insured was engaged in working in the mines. A part of his duties was to load the ore in the cars after it had been loosened by blasting so that it could be handled with a shovel. As they proceeded with this work, they would dig down deeper :and deeper into the ground so that the pit was from ten to fifteen feet deep. Another part of the insured’s duty was to help dig ditches for the purpose of draining the mines. There is no contradiction to this testimony, and it constituted working in the mine, just as much as was the work of the employee who did the blasting. It is contended that the work was not particularly dangerous and that there was no reason to increase the dues of the insured for engaging in that kind of occupation. Be that as it may, the parties had the right to contract with each other and designate working in mines as a hazardous occupation which required notice to the company and an increased payment of dues. The contract does not restrict the clause in question to those engaged in underground mining. The language used is “those employed in mines, not otherwise prohibited,” etc.
Clause (b) of the section provides that if the member engages in any of the occupations mentioned in clause (a) of the section, he shall within thirty days notify the clerk of his camp of his change of occupation and shall pay on each monthly installment of assessments thirty cents of each thousand dollars of his beneficiary certificate in addition to the regular rate.
It further provides that any member failing to notify the clerk and to make the payment as provided shall stand suspended and his beneficiary certificate shall be null and void. Thus it will be seen that the section of the 'constitution is self-executing. It provides in specific terms that if the member does not comply with the provisions of the section he shall be suspended and his benefit certificate shall be null and void.
As we have already seen, the insured was engaged in working in the bauxite mine at the time he was killed by Herrick, and he had not complied with the provisions of the section of the constitution just referred to. The beneficiary certificate made the constitution a part of the contract of insurance. The Legislature of 1917 passed an act pertaining to the regulation and incorporation of fraternal beneficiary associations. Acts of Ark. 1917, vol. 2, p. 2087.
Under section 8 of the act the certificate, the charter of the company, the constitution and laws of the society and the application for membership and medical examination signed by the applicant constitute the agreement between the society and the members. The society in question is a fraternal benefit association.
In Acree v. Whitley, 136 Ark. 149, and in Sovereign Camp Woodmen of the World v. Newsom, 143 Ark. 132, the court held that the insurance certificate of a fraternal society, being an Arkansas contract, is governed by the statute just referred to.
Again, it is contended by counsel for the plaintiff that the judgment of the lower court should be upheld under the incontestability clause of the benefit certificate. We do not agree with counsel in this contention. The clause referred to is section 68 of the constitution. It provides that when a beneficiary certificate has been in force for five consecutive years immediately preceding the death, while in good standing, of the member holding the same, the payment thereof shall not be contested on any ground other than those stated in the section.
It appears from the record that the insured had not made the payments required by section 43 of the constitution when he became employed in the bauxite mines. He did not notify his camp of his change, of occupation and did not pay the additional monthly dues required by the section. The concluding part of the section provides that any such member failing to notify the clerk and to make such payments as above provided shall stand suspended and his beneficiary certificate shall be null and void. Thus it will be seen that the provision is self-executing, and that the benefit certificate was null and void because the member had not complied with the section in the respects just mentioned.. Therefore he was not a member in good standing at the time of his death and the certificate had not been in force for five conseuetive years immediately preceding his death. Hence the incontestability clause of the constitution can avail the plaintiff nothing in this case.
It follows that the court erred in finding for the plaintiff, and for that error the judgment will be reversed and the cause remanded for further proceedings according to law and not inconsistent with this opinion.
Rehearing
(on rehearing). Counsel for the plaintiff in his brief on rehearing earnestly insists that the words, “those employed in mines not otherwise prohibited,” as used in the policy, do not stand alone, but are connected with the context which plainly shows that the parties had in mind those employed in underground mining and not open workings.
Upon reconsideration of the question a majority of the court is of the opinion that counsel is correct in his contention. Insurance policies are written on printed forms specially prepared by experts for the insurance company and the insured has no voice whatever in their preparation; and for these reasons it is well settled that insurance contracts must be construed strictly against the insurer.
Section 42 of the constitution and by-laws of the order specifically designates certain classes of business or employment as prohibited and provides that persons engaged in such occupations shall not be admitted to membership in the order.
Section 43 deals with hazardous occupations. It uses the words, “those employed in mines not otherwise prohibited.” The words, “not otherwise prohibited,” evidently refer to the prohibited occupations named in section 42. This brings us to a consideration of the meaning of the words, “those employed in mines.” As just stated, the company was dealing with hazardous occupations and the context showed what classes of occupations were deemed hazardous by the company. Now there are two meanings' to the word “mine.” In its primary and restricted sense a mine denotes an underground excavation made for the purpose of getting out minerals. The enlarged meaning of mine is the place where minerals are found and under certain circumstances, it includes minerals obtained by open workings. Mndley on Mines (3 ed.), vol. 1, §■§ 88-89. Bauxite is a mineral, but it is mined by open workings. The surface of the earth is cleared off and the bauxite is blasted and is then removed by open workings. Bauxite is mined in precisely the same way that stone or marble is quarried. There is no distinction whatever between the operation of a bauxite mine and the quarrying of stone or marble where the latter is found just beneath the surface of the earth as in the case of bauxite. In such a case the marble or stone is removed by open quarrying or blasting and bauxite is removed in prcisely the same way. If the insurance company had considered bauxite mining to be a hazardous occupation, doubtless it would have also mentioned quarrying. The fact it did not do so, and the further fact that the words, “those employed in mines,” are used in connection with structural iron workers, circus riders, trapeze performers, and those engaged in the actual operation of railway trains, employees in electric current generating plants, and enlisted men in the army and navy, show that the words were used in connection with hazardous occupations. This indicates that the company used them in their primary or popular signification to refer to underground mining and not to open workings.
It follows that the motion for a rehearing should be granted and that the judgment of the trial court should be affirmed. It is so ordered.
