Eminent Household of Columbian Woodmen v. Hewitt , 122 Ark. 480 ( 1916 )

McCulloch, C. ,J.

Appellant is sued on a life and accident insurance policy issued to appellee, as one of its members, the right ¡of action in the case being based on an accidental injury alleged to have been sustained by appellee, resulting in a fracture ¡of one of his arms. There was a trial of the issue before a jury and a verdict in favor of appellee for the full amount mentioned in the policy for that character of injury.

The policy was issued to appellee in the year 1908, and the accidental injury is alleged to have occurred in February, 1915. Appellee adduced the testimony of himself and two or three physicians who treated him, to the effect that his arm was fractured. The affidavits of the physicians were ¡sent in to appellant with the proof of injury, and at the request of appellant the appellee submitted to an x-ray examination by a physician designated by appellant, and furnished the x-ray photograph as a part of the proof of loss, but the photograph did not show that there had been a fracture. The physician who made the x-ray examination testified that -there was no evidence disclosed by the examination that there had been a fracture.

Appellant defends on the ground that there is no liability unless the fracture be disclosed by an x-ray examination by a physician of its own selection. It relies, for this defense, upon an amendment to the by-laws enacted subsequent to the date of the issuance of the policy to appellee. The benefit certificate or policy recited that it was executed in consideration of the warranties made by the assured in the application, and his compliance with the constitution and by-laws of the fraternity “now existing or hereafter legally amended, all of which * * * are a part of this covenant.” The original 'by-laws in force at the time of the issuance of the policy to appellee provided that if the beneficiary suffer a fracture of the arm he should be paid the sum of $200, and the policy contains a covenant to that effect.

At the annual meeting of the fraternity in December, 1914, the by-laws were amended by the enactment of another section in the following language: ‘ ‘¡Section 8, article 11. In the event of fracture as provided in this section, satisfactory proof thereof shall be furnished the society, and satisfactory proof in such case shall be taken to mean an x-ray photograph made and certified to by a physician selected by the eminent medical director, the expense incurred in connection with such proof to be paid by the society.”

The constitution and by-laws, as set forth in the record in this case, contain no further reference to a requirement for a proof of loss, and the question-of liability turns upon the construction of the amendment quoted above. Much effort is devoted iby counsel to discussion of the question whether or not the amendment can be given a retroactive effect so as to apply to a contract with appellee entered into prior to the enactment of the amendment. The view we take of the ease in construing the amendment renders it unnecessary for us to enter into a discussion as to how far a fraternal order can go in applying amendments of the ¡by-laws to antecedent contracts of insurance made with its members. The authorities on that subject are not in entire accord. It seems to be very generally settled that where either the policy itself or the by-laws and constitution in existence at the time of the issuance of the policy contain a stipulation for future changes, they may be made, and when made apply to pre-existing contracts. But some of the cases limit the exercise of such power to .such changes as do not materially affect the original contract. 29 Cyc. of Law, 72, et seq.; Fraternal Union of America v. Zeigler, 145 Ala. 287; Reynolds v. Royal Arcanum, 192 Mass. 150.

But we assume, for the purposes of this decision, that the change in the by-laws was authorized and that it applied to the contract with appellee, and we proceed to determine whether or not the proper construction thereof defeats appellee’s right of recovery. The contention of learned counsel for appellant is that furnishing an x-ray photograph showing a fracture of the arm is a condition precedent to the right of recovery. We do not so interpret the' language of the contract, according to the amended by-laws. The provision undoubtedly constitutes a requirement that satisfactory proof of the injury be furnished, and it undertakes to define what satisfactory proof is. According to its language an x-ray photograph is defined to (be satisfactory proof, but it does not state that the x-ray examination and the photograph thereof must show the fracture. This is an important distinction, for if it had been intended to make the right to recover depend upon the fact that an x-ray photograph revealed the existence of a fracture, then it could have been expressed in more appropriate language. The original by-law, and the policy issued pursuant thereto, contained an unconditional provision that in case of a fracture of the arm of the beneficiary he should be entitled to the payment of $200. The language of that section stands unamended by the subsequent enactment, but the effect of the new provision brought about by the amendment is that an x-ray photograph made and certified by a physician selected by the fraternity must be furnished as a part of the proof of loss. The language used does not justify us in holding that the proof by an x-ray photograph was intended to be exclusive evidence of the fracture on the merit of the case. Especially is this true in the face of the original provision that a certain stipulated sum should be paid in the event of a fracture.

We think the proper 'construction is that the undertaking on the part of the insurer was to pay the sum named in case of an accidental fracture, but that the assured .must submit to an examination by a physician selected by the fraternity, and an x-ray photograph furnished with the proof of loss. This does not exclude any other proof of the existence of the fracture, but was intended as a requirement to give the officers of the fraternity an opportunity to make the fullest investigation. The assured is not concluded by the fact that the x-ray photograph does not reveal the fracture, but is entitled to prove that fact by any other competent evidence. It can not be said that because the x-ray photograph is required as the satisfactory proof of loss that the assured must necessarily be bound by it. The contract as to the form of proof of loss under a policy is not intended as a substitute for evidence of loss to be adduced at the trial of an action to recover the amount thereon. Unless the contract itself expressly makes the right of recovery depend upon the existence of the loss as disclosed in the proof furnished, the assured has the right to resort to other proof in the trial ' of his suit.

Our conclusion, therefore, is that the fact that the x-ray photograph fails to reveal the existence of the fra-c- ' ture does not preclude recovery on the policy, where the assured complied with the terms by .submitting to the examination and furnishing the photograph, ■ and has proved his injury by other competent evidence. The issue was submitted to the jury upon instructions in conformity with this view of the law, and we find no error in the record.

The judgment is therefore affirmed.