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Wigginton v. Q Order /Q of United Commercial Travelers of America.

February 9, 1942

WIGGINTON
v.
ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA.



Appeal from the District Court of the United States for the Southern District of Indiana, Evansville Division; Robert C. Baltzell, Judge.

Author: Minton

Before MAJOR and MINTON, Circuit Judges, and LINDLEY, District Judge.

MINTON, Circuit Judge.

Charles S. Wigginton died November 4, 1939 in his office in Evansville, Indiana, as the result of a gunshot wound. At the time of his death he was a Class A member in good stnding of the Order of United Commercial Travelers of America, the appellant herein. The appellant is a fraternal benefit society incorporated and existing under the laws of Ohio and authorized to do business in Indiana. It had issued on January 2, 1914 to the deceased, Wigginton, an insurance certificate which contained the following provision:

"This Certificate, the Constitution, Bylaws and Articles of Incorporation of said Order, together with the application for insurance signed by said Insured Member, shall constitute the contract between said Order and said Insured Member and shall govern the payment of benefits, and any changes, additions or amendments to said Constitution, By-laws, or Articles of Incorporation, hereafter duly made, shall bind said Order and said Insured Member and his beneficiary or beneficiaries, and shall govern and control the contract in all respects."

The benefit certificate when issued to the deceased contained this provision from the association's constitution:

"Class A. Insured Members shall be indemnified, in accordance with the terms hereinafter set out in this Article, against the results of bodily injury hereinafter mentioned effected through external, violent and accidental means, herein termed the accident, which shall be occasioned by the said accident alone and independent of all other causes.

"Item (11) For death . . . $6,300.00

"Five Thousand ($5,000.00) Dollars of which shall be paid within ninety (90) days from the receipt by the Supreme Executive Committee of satisfactory final proofs of death and Thirteen Hundred ($1300.00) Dollars in weekly installments of Twenty-five ($25.00) Dollars each, beginning within ninety (90) days from the receipt of such final proofs."

At the annual meeting of the Supreme Council of the appellant held in 1931 the following change was made in the constitution of the appellant:

"Nor shall the Order be liable for any death benefit when the member dies as the result of injuries sustained as a result of a funshor wound or the alleged accidental discharge of firearms where there is no eyewitness except the member himself, in an amount greater than Five Hundred Dollars ($500.00)."

Thus it will be seen by the amendment of the constitution the appellant has purported to change the contract with the deceased as to appellant's liability thereunder if death was caused by a gunshor wound.

The appellee was the wife of deceased and the beneficiary in the certificate. She brought suit in the Superior Court of Vanderburgh County, Indiana, to recover. The appellant, the defendant below, removed the case to the United States District Court for the Southern District of Indiana on the grounds of diversity of citizenship. The appellee recovered a judgment and this appeal followed.

We are presented with a question on the evidence as to whether there was an eyewitness, within the meaning of the constitution as amended, and a question as to the validity of the change in the constitution of 1931 as applied to the certificate issued to the deceased, Wigginton.

We lay to one side the question of the validity of the amendment to the constitution and proceed to a determination of whether under the undisputed facts in this case there was an eyewitness within the meaning of the amendment.

Since the facts are not in dispute, we are free to consider them and to reach our own conclusion, untrammeled by the District Court's findings and conclusions of law. Especially is this rule applicable in the case at bar, where all the facts are stipulated. United States v. Anderson Company, 7 cir., 119 F.2d 343, ...


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