1~9-)')9 record no. 2554

Record

I t, l I "t

1~9-)')9

No. 2554 IN THE

Supreme Court of Appeals

of Virginia AT RICHMOND

MINNIE GREEN, amended to read MINNIE DONALD, Plaintiff in Error

vs.

SOUTHWESTERN VOLUNTARY ASSOCIATION, INC. , Defendant in Error

From the Circuit Court of Washington County, Va.

RULE 14

fJ 5. NUMBER OF COPIES To BE FILED AND DELIVERED To OPPOSING COUNSEL. Twenty copies of each brief shall be filed with the clerk of the court, and at least two copies mailed or delivered to opposing counsel on or before the day on which the brief is filed. C] 6. SizE AND TYPE. Briefs shall be printed in type not less in the size than small pica, and shall be nine inches in length and six inches in width, so as to conform in dimension to the printed records. The record number of the case shall be printed on all briefs.

The foregoing is printed in small pica type for the information of counsel.

M. B. WA TrS, Clerk

Court opens at 9:30 a. m. ; Adjourns at r :oo p. m.

Camelot Publishing Company, Wytheville, Va.

INDEX TO PETITION Side Page

Petition for Writ of Error and Supersedeas ......... . Assignments of Error . . ·. . . . . . . . . . . . . . . . . . . . . . . . Statement cf Facts ........................... . Argument .................................. .

Virginia Code, Section 4220 ................ . Defendant's Position ...................... . Defendant's Insurance Status . . . . . ........... . Other Virginia Cases ...................... . Chapter 411 of the 1936 Acts ............... . Conclusion ............................. .

TABLE OF AUTHORITIES CITED STATUTES

1* 5* 3* 6* 8*

13* 22*

28* 32* 40*

Virginia Code (Michie, 1936) Sec. 4220 . . . . . . . . . . . . 8* Virginia Code (Michie, 1936) Sec. 4258 ( 7) . . . . . . . . 33 * Virginia Code (Michie, 1936) Sec-·- Ch ......... .

411 of the 1936 Acts ....................... 32*

CASES

Continental Ins. Co. vs. Linsey, 111 Va. 389 ....... 19-20* Doney vs. Equitable Life, 117 Atlantic 6 I 8 . . . . . . . . . . 25 * Clemmens vs. Terrill, 145 S. E. 78 . . . . . . . . . . . . . . . . 26* Flanagan vs. Mutual Ins. Co. 15 2 Va. 3 8 .......... 16-33 * Mutual Benefit vs. Ratcliff, 163 Va. 325 ............ 29* Modern Woodman vs. Eura Noel, 41 L. R. A. (Ns) 648 37* Modern Woodman vs. Lawson, 110 Va. 81 .......... 28* McCarthy vs. Supreme Lodge, 153 Mass. 314 : ....... 36* Pettus vs~ Hendricks, 1 1 3 Va. 3 2 7 . . . . . . . . . . . . . . . . 3 6* Shepard vs. Sovereign Camp, 166 Va. 488 ........ 30-39* Sims vs. Missouri State Life, 23 S. W. (2d) 1075 ..... 25* Thompson vs. Royal Neighbors, 13 3 S. W. 146 . . . . . . 23 * Walker vs. Accident Ins. Co. 127 Va. 140 .... 9-14-18-'24* Williams vs. Metropolitan Life, 139 Va. 341 . . . . . . . . 7*

SECONDARY AUTHORITIES

1 7 A. L. R. 5 80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 6 * I I 3 A. L. R. I 5 24 . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 3 6* 29 Am. Jur. 3 67, section 3 26 . . . . . . . . . . . . . . . . . . . . 11 * 29 Am. Jur. 320, section 364 .................... 35* 2 Couch on Insurance 1283, section 440-G & foot- ... .

note 1264 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11*

2 Couch on Ins. 1265 ... : .................... 35-38* 37 C. J. Insurance 367, section 326 .............. I 1-12* 3 7 C. J. Insurance 469, 4 70, section 184 ( 12) . . . . . . . . 11 * 3 7 C. J. Insurance 3 9 5, section 6 1 & footnote . . . . . . . . 1 2 * 7 C. J. Beneficial associations 1055, sec. r .......... 22*

I 4 R. C. L. Ins. 1 3 7 5, sec. 5 4 3 . . . . . . . . . . . . . . . . . . 1 1 * I 4 R. C. L. Ins. sec. 2 5 7 . . . . . . . . . . . . . . . . . . . . . . . . 1 1 * 14 R. C. L. Ins. sec. 202 . . . . . . . . . . . . . . . . . . . . . . . . 14 *

IN THE

Supreme Court of Appeals

of Virginia AT RICHMOND ----o,----

Record No. 2554 ----o----

MINNIE GREEN, amended to read MINNIE DONALD, Plaintiff in Error

vs.

SOUTHWESTERN VOLUNTARY ASSOCIATION, INC., Defendant in Error

----0----

PETITION

To the Honorable Justices of the Supreme Court of Appeals of Virginia:

Your appellant, Minnie Green (col.), amended to read Minnie Donald respectfully represents unto your honors that she is aggrived by a final judgment of the Circuit Court of Washington County, Virginia entered by it on the 24th day of October, 1941 in an action at law instituted by Minnie Green in the amount of $3 oo. oo, which suit was instituted by a notice of motion wherein Minnie Green was the beneficiary and a dependant in an insurance policy issued by the defendant, a corp~

2 Supreme Court of Appeals of Virginia

oration doing an insurance business in Virginia, which policy was in full force and effect at the time of the insured' s death and which obligation the defendant refused to discharge and therefore this suit. To plaintiffs notice of motion, the defendant did not file any special pleadings, neither did they demand a bill

- of particulars and when the case came on to be heard before a jury, it relied on the general issue.

After the plaintiff had introduced its evidence and the defendant had introduced the evidence of two witnesses, the defendant demurred to the evidence. At that time, the jury went out and fixed the value of plaintiffs claim in the amount of

. $300.00, the face of her policy, and the court, not having been advised ,took time to consider the demurrer to the evidence and

after argument of counsel and the filing of the various 2 * briefs and memoranda, the court * sustained the demurrer

to the evidence and entered final judgment in favor of the defendant and hence this petition for a writ of error and supersedeas.

For the convenience of the court, the appellant here will be described as the plaintiff, the position she took in the lower court, and the appellee here will be described as the defendant, the position it took in the court below.

The plaintiff contended that she was entitled to recover because both her pleadings and evidence supported the facts that she was the named beneficiary in the policy, that the policy was in full force and effect at the time of the insured' s death, that there was no misstatement in the inducement which amounted to a bar to recovery under Code section 4220, that she was the engaged wife and had an insurable interest in his life, that she was a dependent upon the insured, within the meaning of law, that therefore she was entitled to recover. The defendant claimed that there was fraud in the inducement, that it did not operate under the general insurance laws of Virginia but under a special act of the legislature known as Chapter 41 1 of the 1936 Acts, that those acts required certain persons to be named as beneficiary before the beneficiary could take and that the plaintiff was not in that class.

A transcript of the record in said proceeding accompany this petition, and is made a part hereof.

Minnie Green vs. Southwestern Voluntary Asso., Inc. 3

*STATEMENT OF FACTS

The plaintiff, Minnie Green, is a colored woman living in Bristol, Virginia on Scyamore Street, where she now ope_rates a rooming house. (R. 106) . The plaintiff formerly lived at 112 King Street, Bristol, Virginia in a rooming house. (R. 66 & 1 1 1) . She became engaged to be married to one, Robert Clayton Green, who also lived in this rooming house at 1 1 2

King Street, Bristol Virginia (R. 66). Prior to her engagement to be married to Robert Clayton Green, she took in washing and ironing for a living (R. 66). After she became engaged, she went to work in a restaurant owned by her engaged husband, Robert Clayton Green, and gave up her business of washing and ironing for others.

After she went to work in the restaurant, she received no salary (R. 68) but she did receive her room rent, her board, her clothes, and all necessities of life, (R. 6 9) , even down to the furniture in her home (R. 1 13) . The insured, Robert Clayton Green, saw that her every want was taken care of after she became engaged and while she was working at the restaurant even to the payment of her insurance premium (R. 73) . The insured died and Minnie Green was named beneficiary in a policy issued by the defendant company, doing an insurance business in Virginia. At the time of the taking of the application, the defendant's agent went to 1 1 2 King Street, Bristol Virginia and had a conversation with the insured, Robert Clayton Green, and the insured took out the policy in question and when asked who

the beneficiary was to be he told the agent that it was to be 4 * the plaintiff and when asked what relationship she *was,

the insured told him that he was going to marry her in the very near future and the agent, instead of putting down engaged wife, described her erroneously as his wife, which act was done by the agent, without the fault or acquiescence of the insured or the beneficiary. There was no proof of illici' connection be·· tween the insured and the beneficiary.

5* * ASSIGNMENTS OF ERROR

Your petitioner assigns the following errors:

1. The court errored in sustaining the d~murrer to the


evidence and in entering a final judgment in favor of the defendant.

2. The court errored in not overruling the demurrer to the evidence and in not entering a final judgment for the plaintiff in the amount of $300.00 according to the jury verdict.

3. The court errored in not overruling the demurrer to the evidence and not holding specifically:

a. That there was no misstatement which was material to the risk when assumed according to section 4220 of the Virginia code, which section applies to all insurance contracts of every kind issued in Virginia.

b. That the defendant was not operating under Chapter 411 of the 193 6 Acts under the evidence in this case, but instead was operating under the general insurance laws of Virginia, which laws do not attempt to require the beneficiary to be in any particular class, such as dependent, etc., and that the plaintiff had an insurable interest in the life of the insured because of her engagement to marry him and entitled to recover.

c. That even though the defendant was operating under Chapter 41 1 of the 193 6 Acts, the plaintiff was still a dependent within the meaning of the law, and entitled to have a final judgment entered, in her behalf, upon the juries verdict.

6* *ARGUMENT

As we understand the law, there is very little difference if any between the case at bar in its present status and that status it would have occupied had the case taken its natural course, a jury verdict and that verdict set aside ~Y. the court: In Burke's Pleading and Practice (not the latest edition), Section 259, page 487, this is said:

"The effect of a demurrer to the evidence is to withdraw the case from the jury and submit it to the determination of the court. It is usually resorted to chiefly by corporations who get scant justir.e at the hands of juries, for the purpose of having the case determined by the court. The success of such a procedure is always dependent upon the

Minnie Green vs. Southwestern Voluntary Asso., Inc 5

weakness of the demurree' s evidence, and the inferences to be drawn therefrom. It has been found in practice, that the courts are more apt to say that a particular infe~nce bad been submitted to them, than they are to set aside a verdict by the jury after they have drawn such inference.,, (Italics supplied).

This case is before this court on a demurrer to the evidence, the jury having fixed the value of the plaintiff's claim in the amount of $300.00.

The real question therefore, is whether or not the plaintiff has produced, through her pleaadings and evidence, a sufficient case to justify a verdict by the jury, which we say she has. Due to the fact that the defendant did not see cause to go forward with the usual defense, but instead, demurred to the evidence, the

first important question is, just what position does the de-7* fendant take when it demurrers *to the evidence. Relative

to the defendant's position upon a demurrer to evidence, we quote from Burke's Pleading and Practice, (not the latest edition) at page 489, Section 261:

"The demurrant is considered as admitting the truthi of all bis adversary's evidence and all just inferences that can be properly drawn therefrom by the jury, and as waiving all of his own evidence which conflicts with that of his adversary or which has been impeached, and all inferences From his own evidence (although not in conflict with hi[}, adversaries which do not necessarily result therefrom * * * ." Italics supplied.

As to the position of the defendant in the case at bar, since it has demurred to the evidence, we close as to this point by quoting from the case of Williams vs. Metropolitan Life Insurance Co., 1 3 9 Va. 3 4 1, at page 3 4 7, headnote 7 where this is said.

''Under the familiar rule which obtains when a demurrer to the evidence is relied on, the defendant admits as true all of the plaintiff's evidence and all just inferences as to be drawn therefrom. and waives all of his evidence 't,n conflict therewith. Viewing the instant case in the light of

6

8*

Supreme Court of Appeals of Virginia

this rule and the law as applied to the evidence, we are of« the opinion that the company has waived its r_ight to complain of the unanswered and imperfectly answered questions contained in defendant's application, and cannot now avoid its policy contract. Certain it is that the jury would have been warranted in so finding. And sinoe the jury might: have found for the demuree, the court erred in not finding so. Bank vs. Taylor, 104 Va. 164, 51 S. E. I 59." (Italics supplied.

*VIRGINIA CODE SEC. 4220

In this state, the legislature in its wisdom, has seen cause to lay down in no uncertain terms just what statements do, or do not, amount to a bar in recovery on an insurance policy and from this section 4220 we quote:

"All statements, declarations and descriptions in any, application for a policy of insurance shall be deemed representations and not warranties, and no statement in such application or in any affidavit made before or after loss under the policy, shall bar :i recovery upon a policy of insurance, or be construed as a warranty, anything in the policy to the contrary notwithstanding, unless it be clearly proved that such answer or statement was material to the risk when' assumed and was untrue." Italics supplied.

Since the defendant demurred to the evidence, it is now in the position of having admitted the truth of all the plaintiffs testimony.

And, by the statutory law of Virginia, no statement made before or after the issuance of the policy regardless of how made, willful or otherwise, can be a bar to the recovery "unless it be clearly proved that such answer or statement was material to the risk when assumed and was not true."

Therefore in reading the statute, it will be observed from the very wording of it that there is a shifting, so to speak, of the burden of proof. Be that as it may, certainly the defendant is required to go forward with the evidence and clearly prove that the untrue statements or misstatements was material to the risk when assumed.


9 * This is only reasonable because as in the case at bar, the defendant admitted the policy was in full force and effect

when the insured, Robert Clayton Green, died, that it had collected the premiums, but standing on one thing only, namely, that Minnie Green was not his wife at the time of the issuance of the policy, it refused to pay the claim. If the misstatement was material to the risk or a fraud in the inducement as the defendant now claims, why did the defendant fail to clearly prove that this misstatement was material to the risk, when assumed, because this is the burden put upon the defendant by Code section 4220 and the only way it can now escape. But for reasons better known to itself, it failed to do so. It might have been that the defendant could not substantiate such a defense because, in the words of Judge Prentis, before a statement is material to the risk when assumed, it must be clearly proved that the misstatements "substantially increases the chances of loss." 127 Va. 140.

The evidence of the plaintiff and two other witnesses who were there at the time this policy was taken out, meaning the application signed, testified that Robert Clayton Green, colored, the insured, told the agent that he was not married to the plaintiff but expected to in the near future. As to this point, may we quote from the record, page where the plaintiff is testifying:

''Q. 5 This policy reads there 'Minnie Green, wife of Robert Clayton Green.' Will you tell the court in your own words why that appears there as Minnie Green, his wife?''

"A. Well, when he taken the insurance out, he said, 'How do you want this made?' And he said, 'We expect

10* to *get married.' And he says, 'Well, I'll make it over to her to keep from the trouble of changing it again.' He told him we was expecting to get married-he told him that, and he said that would be all right, and to keep from the trouble of changing it he would fix it that way."

"Q. 6 So Robert Clayton Green told this agent that you all were not married?"

By Mr. Jones: We object to the question.


"Q. 7 State whether or not Robert Clayton Green, who is now dead, told the insurance agent you all were not man and wife?''

"A. Yes, sir."

"Q. 8 Now where did this happen? Where did this conversation happen?"

"A. On King Street, 1 I 2 King:'

"Q. 9 Where?"

"A. In the front room."

"Q. 1 o In what town?"

"A. Bristol, Virginia."

"Q. 1 I Now who was there and heard this conver-sation?"

"A. Jumbo Lyons and Jo Ella Thomas."

"Q. I 2 Go ahead."

"A. And Robert and myself."

It will be noted that in the policy and the application, that it is plain and unmistakeable, that the beneficiary was to be Minnie Green, and that the relationship is merely descriptive of the person who is to take. To illustrate, the insured desired Minnie Green, as the agent so classified her, to have the insurance, and the agent, and not the insured, erroneously described Minnie Green as his wife. It will also be noted that the insured did not name his wife as the beneficiary. He named Minnie Green and

so it has been held that where the beneficiary is listed as his I I* wife, none other but his * wife could take, but where the

insured lists John Doe as beneficiary and classifies John as his cousin, such an erroneous classification does not defeat the policy.

As to our contention that the word wife is merely descriptive and not such a warranty as to bar recovery, we plant our feet on Section 4220 and the following authorities: 14 R. C. L. (Ins.) page 13 75, section 543; C. J. (Ins.) page 567, section 326, Vol. 29 Am. Jur. (Ins.) page 313, section 356, citing 108


A. R. L. 455. Couch on Ins. Vol. 2, page 1263, section 440-G and footnote on page 1264, and in 14 R. C. L. under the heading of Insurance, Section 2 5 7, this is said:

"Even where representations are made warranties, a misstatiement as to the relationship of the beneficiary does not, according to the better opinion avoid the policy, though the contrary has been held.', Italics supplied.

As far as we know, the leading authority known today on the law of insurance is Couch, and in Vol. 2 of that work at page 1265, this is said in part:

"***And the fact that a person is erroneously described in a beneficiary clause as wife is generally held not sufficient in itself to deprive her of an insurable interest, or to prevent her taking in some capacity in which she is eligible, such, for example, as a dependent." Italics supplied.

In 3 7 Corpus Juris under the title of Life Insurance, at pages 469 and 470, under section 184 ( 12) this is said in part:

"***Where the statute orovides that no misreore.'umtation shall avoid the policy unless th~ matter misrepresented actually contributed to the death of th~ insured, such statement, although wilfully false, is no defense to an action on the policy***." Italics supplied. See cases cited in footnote.

12 * It will be noted that the text heretofore cited is almost identical with our statute.

Again in 29 Am. Jur. under title of insurance, at page 44 I,

section 5 4 6, this is said in part:

"A statute, common as to substance in many jurisdictions, provides that no misstatement or br,each of warranty, if made in good faith and without fraud shall avoid a policy of insurance unless it relates to a matter material to the risk. * * *" Italics supplied. See cases there cited in footnote.

It will be noted in reading our statute as compared to this text that our statute has now been amended such that fraud, in-

IO Supreme Court of Appeals of Virginia

tentional misstatements, willful misconduct, etc., is not the test, but in the present statute the test is whether or not the misstatements are material to the risk at the time the risk is assumed.

In 37 C. J. under the title of Life Insurance, at page 567, under section 3 26, this is said in part:

11/f the designation of the beneficiary as the wife of insured is descriptive only, she being named, it is immat'erial whether or not she is his lawfol wife or even that an-· other person is his legal wife, or even though he is only engaged to be married to the person named and described as wife * * * ." Italics supplied. See cases cited in footnote.

Again in 3 7 C. J. under the title of Life Insurance at page 3 9 5, section 6 1, this is said:

11As between a man and a woman who are engaged to be married, there· is such interest on the part of each in the life of the other as to support a contract of insurance on the life of one for the benefit of the other." Italics supplied.

In one of the foot notes this is said:

13*

"Such insurance is "not a mere wagering contract and therefore can not be said to contravene any principle of public policy. The plaintiff had an interest in the life of Clark, a valid contract of marriage was subsisting between them. Had he lived and violated the contract she would have had her action for damages. Had he observed and kept the same, then as his wife she would have been entitled to support." Italics supplied.

DEFENDANT'S POSITION

May we here remind this court that there is no question but · what the plaintiff is the one and the same person intended by the

insured and the insurance company alike, to be the beneficiary, but erroneously described, as wife, when in fact she was only engaged to be married, and which fact was thoroughly explained to the defendant's agent.

Minnie Green vs. Southwestern Voluntary Asso., Inc 1 1

In the lower court, the defendant stated its contention in writing, attempting to justify its failure to pay and to support the demurrer to the evidence, which position was as follows:

"The defendant refused to pay the amount of the policy for two reasons:

1. The policy was obtained through the fraud and misrepresentation of the assured and of the plaintiff in falsely stating the name of the plaintiff and the beneficiary therein was the wife of the plaintiff.

2. The plaintiff was and is prohibited from being a beneficiary by Section 425 8 ( 7) of Virginia Code of 1936."

We presume that the defendant will take the same position in this court that it took in the lower court and hence we will discuss its two positions in the lower court in their order:

1. The defendant said that they refused to pay the policy because it was obtained through fraud and misrepresentation because the plaintiff was stated to be the wife of the insured when she was not.

This might have been a good defense under the common law because the cases are divided but under our present statute,

fraud and misrepresentation or misstatements in the induceI 4 * ment * Is not a defense within itself unless two things con-

cur. First, the statements must be untrue, and second, they must be material to the risk when assumed and this court held in the Walker Case, 127 Va. 140, at page 147, to be material to risk, the misstatement must have "substantially increased the chances of loss insured against."

Surely the defendant will not seriously contend in this court, that the fact, that its own agent erroneously stated the plaintiff to be wife when in fact she was merely the engaged wife, was such a misstatement, "without more" as to "substantially increase the chances of loss insured against."

The sole defense under the statute is that the defendant must clearly prove that the untrue statements were material to


the risk when assumed and as to what is material to the risks, we quote from the case of Standard Accident Insurance Co. vs. Walker, 127 Va. 140, at page 147 where Judge Prentis, speaking for the court said:

"A fair test of the materiality of a fact is found in the answer to the question, whether reasonably careful -and intelligent men would have regarded the fact communicated at the time of effecting the insurance as substantially increasing the chance o.f loss insured against so as to bring about a rejection of the risk or charging an increased premium."

Judge Prentis, when speaking for the court in the Walker case, page 14 7 was quoting with approval, 14 R. C. L. under title of Insurance, Section 202 and in that same section as to the matter of proving whether or not a certain fact is or is not material to the risk, the learned author says in part, on page 1022:

1 5 * "***The materiality of a fact cannot be proved by the opinion of experts, though they may testify as to the usages of insurers with reference to rejecting risks or charging increased premiums, nor is evidence of local custom among insurers as to the materiality of an undisclosed fact respecting the risk admissible in an action on a policy if not communicated to the insured, or of such general notoriety as to afford any presumption of knowledge on his part."

It will be noted from both the statement of Judge Prentis and of R. C. L., heretofore quoted, that the test of materiality is not to be decided by the judgment of this insurance company or its officials, it is not a question of what they think, but it is a question of whether reasonable men would have regarded the untrue statements as substantially increasing the chance of loss and increased hazard, so to speak, so as to either cause a rejection or an increased premium.

According to these standards as set up by this, our Court of Last Resort, and the learned author in R. C. L. we find that the defendant is wholly lacking in its evidence along this line, in. fact there is not one line of testimony of this nature and by the expressed terms of the statute 4220 the statements shall not


be a bar unless clearly proved to be material to the risk when assumed and untrue.

In the first place, the statements were not untrue· because the agent was told they were not married but only engaged to be married, and second, the defendant utterly failed to carry the burden put upon him by the law to clearly prove that the statements were material to the risk and that he was more likely to die in a shorter time because he was engaged. to be married to this woman, but plaintiff says that the fact that she was list-

ed as insured' s wife was not her fault but the fault 16* *of their own agent, because the insured told the agent the

truth and the insured and plaintiff each relied upon the agent to do his duty.

If there was any fraud put upon the company, it was done by its own agent, the solicitor, and not by us. But again, fraud is not a bar to recovery. The test is materiality to the risk when assumed.

It is therefore beyond debate that if the defendant intended to rely upon a misstatement of fact according to code section 4220 it became its duty first, to show what other insurance companies or officials did in such a case, and from this evidence it was the duty of the jury, the triers of the facts, to say whether or not from all the evidence produced by the defendant that the misstatements or untrue statements were in fact, material to the risk. In this case, because of the demurrer to the evidence, such duty devolved upon the judge. But, as in the case at bar, there was no evidence on this question and hence it was impossible for the court to hold that the misstatement, if any, was material to the risk when assumed, particularily is this true when the statute says that the misstatement, if material, must be clearly proved.

But this court has spoken many times in many different cases as to what is, and what is not, material to the risk. In the case of Flannagan vs. the Mutual Insurance Company, 152 Va. 3 8, it appeared from the facts that William L. Jones had secured two life insurance policies from the Mutual Life Insurance Company on his life and Flannagan was his beneficiary and that the

insured formerly worked for the American Gun Company 17* *since its organization in I 901 at a salary ranging from

$5500.00 to $10,000.00 a year in various parts of the


United States. In the application, the insured stated that he had had influenza but that he had recovered and was now in good health. The application was made in November, 1924 and in December, 1924, the policy was issued. It appeared that the statement of the insured was false, that he had been to many different doctors. He would be required to lay off his work at various times for considerable length of time before he would recuperate. The evidence is too voluminous to quote but the court held that his statements as to his health were material to the risk, and on page 6 6 we find:

"The statutory law applicable to this issue appears in section 4220 of the Code (Michie's 1924) : 'All statements, declarations, and descriptions in any application for a policy of insurance shall be deemed representations and not warranties, and no statement in such application or in any affidavit made before or after loss under the policy shall bar a recovery upon a policy of insurance or be construed as a warranty, anything in the policy to the contrary notwithstanding, unless it be clearly proved that such answer or statement was material to the risk when assumed and was untrue."

"In Keeton vs. Jefferson Standard Life Ins. Co. (C. C. A.), 5 Fed. (2d) I 83, the court in considering this statute said: "It goes without saying that die very basis of the contract is the condition of the man's health. No insurance company could last, no insurance company could exist, unless there was a careful medical examination of the applicant for insurance.''

"And again: "The policies contained a one-year noncontestible clause. Of course, before issuance of such policies, the condition of the health oJ the applicant was of prime importance, and where the policies became incontestible after a year, it was doubly so. Every consideration of right and justice would indicate that in such circumstances the utmost care should be observed in entering into a contract of insurance, and that only persons supposed to be in good health would be acceptable as risks. The applicants history in respect to his health and medical treatment were

18* most material, as bearing upon *whether the insurance risk would be assumed; and at least the applicant should make

Minnie Green vs. Southwestern Voluntary Assa., Inc I 5

full and frank explanation and answers to all inquiries throwing light upon his present and past state of health. Nothing could well be more important than the fact of previous sickness and past medical treatment, as to which the application was best able to furnish correct information; and anything that tended to mislead, or indicated a purpose to conceal the real truth, would serve to invalidate a policy if procured by such misleading fraudulent conduct.''

It may well be ~hat there was no purpose to defraud but that is not the test.

"The Revisors were of the opinion that if the answer or statement was material to the risk when assumed and was untrue, that no recovery should be had but that if immaterial although false and fraudulently made, that it should not bar recovery for the reason that such a statement could not have affected the risk, being immaterial to it. If the statement was material, although innocently made, of course no recovery should be allowed." (Revisers Note, Code r 9 r 9, section 4220.) Italics supplied.

Nothing is better founded in the law of insurance than a misstatement of age, which should lessen ones expectancy, or a misstatement of health which brings about a more hazardous risk on their face, material to the risk, because they meet every test of materiality as laid down by Judge Prentis in the Walker Case, r 2 7 Va. 140, where he said: "substantially increasing the chances of loss insured against." This is borne out by the American Mortality Table. Again this court held that where an insured states that the beneficiary is his wife, when in fact she is not, and in addition to this statement it appears from the record that the insured and the beneficiary are cohabiting as man and wife, then the risk is more hazardous and in such a case, the court has held that that amounts to a material change in the risk.

19 * This is only logical in Virginia because this court has many times said that we do not rtcognize common law marriages.

In fact we have a statute prohibiting lascivious co-habitation and for the violation thereof the statute makes it a serious crime. Therefore it would be against the public · policy of this state to


allow a beneficiary to recover if she had been living with the insured in violation of our criminal lascivious co-habitation statute. So· in our first case on this point, in Continental Co. vs. Lindsay, 111 Va. 389, at page 392, the court said in part:

"***We are further of opinion that in a written application for insurance where the insured is asked to give, the name, relationship and residence of the beneficiary, and he states in reply that the beneficiary is his wife, and it turns out that she is not bis wife but a woman with whom he is living in illicit cohabitation, such false statement with resp~ct to His refatiori to the beneficiary avoids the policy. The question asked by company called for most material, information that might well have a very important bearing upon the issuance of the policy, and it was therefore agreed that the representation made in answer thereto should constitute a warranty. This is done for the purpose of ascertaining the manner of life, the environments and habits of those who apply for insurance, that the company may reject the application of those deemed to be undesirable risks. It cannot be doubted that a man who, in violation of law, is living in lewd and lascioious cohabitation with a woman is less desirable risk than one who is leading a regular clean life. The company has, by its contract, fixed its estimate of the importance of a truthful answer to the question calling for the relation between the applicant and the proposed beneficiary of the policy, and the applicant has accepted the test and agreed that his answer shall constitute a warranty of the fact stated. It would be a violation of the legal rights of the company to take away its power to make its opinion the standard of what is material, and to leave that point to the determination of a jury. Jefferies vs. Life Ins. Co., 22 Wallace 47, 22 L. Ed. 833; Gaines vs. Fidelity & Casualty Co., 188 N. Y.411, 81 N. E. 169." Italics supplied.

20 * Following this case we have the Butts case and upon which the plaintiff pitches its whole defense.

The defendant took the position in the lower court that the case at bar was absolutely controlled by the case of Provident Relief Association vs. Butts, 158 Va. 259.

Minnie Green vs. Southwestern Voluntary Asso., Inc I 7

The Butts case is but a continuation of the authority as laid down in the case of the Continental Company vs. Lindsay, r r I Va. 389, the Lindsay case holding that a person who was living a life of lewd and lascivious cohabitation was a less desirable risk than one who was leading a regular and clean life.

In the Butts case, Chief Justice Campbell was very careful to detail four pages of testimony upon which he predicated or grounded the Butts decision.

We do not find fault with the Butts decision because the Butts case was but a continuation of the holding in the Lindsay case and but a reflection of our statute prohibiting lascivious cohabitation and a still further reflection of this courts holdings wherein they have refused to recognize the common law marriage in Virginia.

The plaintiff contended below and contends here that the Butts case is not applicable to the case at bar because the· facts distinguish the two. Therefore, we will content ourselves to point out some of the distinguishing facts between the two. In the case at bar, the plaintiff was engaged to be married to the defendant. There was no illicit connections between them. Even though it was but an agreement to marry, still the insured,

now deceased, had the beneficiary to give up her business 2 r * of *washing and ironing and come and work in a restau-

rant he owned. He bought the wedding clothes, he paid her room rent, and all expenses of every kind and nature was ~een to by the insured, and that the beneficiary, his engaged wife, wanted for nothing, even to furniture in her home. On the contrary, in the Butts case, we point out these distinctions: "It appeared for a number, of years Butts and Lillian Smith had been living in a state of illicit cohabitation." In the Butts case, the; beneficiary admitted on cross examination that he told the insurance company solicitor or agent that Lillian Smith was his "woman.". He denied, however, that he told the agent that she was his cousin as the application showed. But in two other policies the applications also showed that Lillian Smith bore the relation of cousin to Butts.

And Judge Campbell further pointed out that Butts was a frequent violator of the law, being convicted of various offenses at least eighteen times.


In the Butts case, the notice of motion simply said that Butts was the beneficiary and that was the only allegation along that line.

Therefore when evidence was offered during the trial of Butts being a creditor of Lillian Smith and a controversy arose over some instructions that was offered by Butts, Judge Campbell said on page 267, "the instructions injected an issue raised by neither the pleadings or the proof." In the Butts case, the record does not state that the plaintiff relied upon section 4220 and here the plaintiff does.

22* *DEFENDANT'S INSURANCE STATUS

The p1aintiff sued this defendant on an insurance contract. The· plaintiff did not file a special plea alleging that it was not operating under the general insurance laws of Virginia but instead under Chapter 4 1 1 of the 193 6 Acts of the Virginia assembly, neither did it offer a single line of proof to take it out from under the general insurance laws.

In its demurrer to the evidence, it took the position that it was not operating under the general insurance laws of Va. but under Chapter 411 of the 1936 Acts and which the plaintiff contended was untenable because it had neither pied nor offered proof to support any such contention and so in 7 C. J. under the title of Beneficial Associations, page 1055, section 1, this is said in part: "and a recital in a certificate issued to a member is no evidence that the society is a benevolent association."

The defendant seeks to hide behind Chapter 4 1 1 of the 1936 Acts of the Assembly because this statute limits and names, specifically what class of people may be beneficiaries. When· the defendant, therefore, tries to rely upon Chapter 411 of thet 1936 Acts it seeks to rely upon a special defense which it neither pled nor proved. The defendant might be said to be in a posi-. tion similar to one who pleads self defense. In such a plea you admit that you killed your assailant but claim you did it in self defense, that your back was to the wall, but one who alleges a, special plea must prove it.

23 * It also might be said to be similar to the Personal *Finance Company of Bristol who goes into court and offers a note


which recites on its face, 3 Yz % per month, on the unpaid balance and without anything else rests its case. The general interest laws of Virginia provide for 6 % per annum and before the Personal Finance Company could take a judgment for more than 6 % per annum on past due interest, it would be necessary for the compafl:y to allege and prove in no uncertain terms that it was chartered, licensed, and operating under the terms of the Small Loan Act of Virginia and that this act allowed 3 Yi%· interest up to and including the date of the judgment. Otherwise, if no proof was offered, the mere recitation in the note of 3 Yz % per annum would not make it a binding contract that the court could enforce. Be that as it may, we have an identical case bearing out Corpus Juris as heretofore cited that the mere reference in a policy to some certain act of the legislature did not bind the beneficiary unless the insurance company proved that it was operating under that statute.

In Thompson vs. Royal Neighbors of America, 133 S. W. 146 at page 149, this is said in part:

"It is true that the certificate sets up that the defendant is a benevolent society, but this recital in the certificate was no evidence of the fact itself. Whether it was within section 7109, Rev. St. 1909, as a fraternal beneficiary association, "as being a corporation, society, or voluntary association, formed or organized and carried on for the sole purpose of its mem hers and their beneficiaries, and not for profit," and that it was an association having a "lodge society, with ritualistic form of work and representative form of government," and making "provisions for the payment of benefits in case of death * * * derived from assessments or dues collected from its members," are matters of affirmative proof, and not to be assumed if existing solely

24 * by a recital in the certificate. Even the certificate *of incorporation or that of authority to do business in this state are not conclusive of the character of the business done. That is to be determined, in part it is true, by an examination of the certificates issued, but it also rests on proof of facts outside of even the certificate: proof of facts tending to show that the association is conducted as one which our laws define to be a benevolent association. Defendant made no such proof *- * *."


Therefore, the plaintiff takes her stand that under the pleadings and evidence in this case, this defendant, so far as the record is concerned, is bound by the general insurance laws of Virginia and not by Chapter 411 of the 1936 Acts. Therefore. we say that there is no limitation under the general insurance laws of Virginia as to who may be beneficiaries, and hence unquestionably, right and justice demands that the plaintiff prevail.

Under our Virginia statute 4220 as it now reads, there is only one way that you can bar a beneficiary from recovering so far as statements in the application are concerned and that is by showing that the statements contained in the application or policy are material to the risk and untrue. This court has said in a decision heretofo~e quoted, namely, the Walker Case, 127 Va. 140, the true test is, would a reasonable person have believed that the misstatement in the application about the wife in this case, would have subst<mitially increased the chance of loss andi the statute put the burden upon the defendant to clearly prove· thls and as it failed to offer any testimony along this line, it is now estopped from making its present defense.

But even under the common law decisions where the pl_aintiffs v,ere not aided by an enabling act such as 4220 upon

25 * *which the plaintiff here relys, we find many decisions supporting her contention and we could prevail according

to these decisions if we did not even have Section 4220 and we now quote from them:

Doney vs. Equitable Life Assur. Soc. of United States 117,

Atlantic 618. In this case the insured had a living wife that he had left in 19 I 6 and went to live with another woman. In the controversy between whether the legal wife or the designated beneficiary would take this was said:

"* * * If the word wife had been used alone, the case would be different, but the rule as we understand it in cases of this class, apart from questions of beneficial interest, bylaws, or constitutions of fraternal organizations and so on, is that, 'if. the designation of the beneficiary as the wife of the assured is descriptive only, it is immaterial wfrether or not she is his lawful wife. 25 Cyc. 889; Joyce on Insur-

Minnie Green vs. Southwestern Voluntary Asso.t Inc 21

ance, Section 815, 816. This rule was applied to the Late Vice Chancellor Howell in an inter-pleading case. Prudential Insurance Company vs. Morris (N. J. Ch.) 70 Atl. 924, relying on Overbeck vs. Overbeck, 155 Pa. 525 Atl. 646. Other cases cited by counsel which we find support the ru]e are Slaughter vs. Slaughter, 186 Ala. 302, 65 South 348, another interpleading suit; Mutual Life Ins. Company vs. Cummings, 66 Or. 272, 126 Pac. 982, 133 Pac. 1169, with foot note in 47 L. R. A. (N. S.) 252 Am. Cas. 191 5 B. 5 3 5; Story vs. Williamsburgh etc., Association, 95 N. Y. 474; to which may be added Brogi vs. Brogi, 211 Mass. 512, 98 N. E. 5 73. These authorities hold that, when the beneficiary clause names a particular individual describing her as wife, that word is to~ taken as a mere descriptio personae and that the name, and not the description is to control." Italics ~upplied.

Again this is said and we quote from Sims vs. Missouri State Life Ins. Co., 23 S. W. (2d) 1075 at page 1078 headnote 3 and 4:

"We understand that, if provision is made for the in, surance to be paid to the wife of the insured under the gen-

26 * eral insurance designation and with nothing more *appearing, it will not be held payable to one with whom the insured may have cohabited as his wife, when another woman was his lawful wife. Clements vs. Terrell, 167 Ga. 237 145 S. E. 78, 60 A. L. R. 969. However, if the designation of the benreficiary as the wife of the insured is descriptive only, she being named, it is immaterial whether or not she is his lawful wife, or even that another person is his lawful. wife. Mutual Benefit Life Insurance Company vs. Cummings, supra; Doney vs. Equitable Life Assur. Co., 97 N. J. law, 393, 117 A. 618; Clements vs. Terrell supra; Prudential Insurance Company vs. Morris N. J. Ch. 70 A. 924; Lampkin vs. Travelers Insurance Company 11 Col. app. 249, 5 2 P. I 040; James vs. Supreme Council of the Royal Arcanum (C. C.) 130 F. 1014; 37 C. J. 567." Italics supplied.


Our last case upon this point is the case of Clements vs. Terrell 145 S. E. 78 and at page 82 where we find a general review of the cases this is said in part:

"***But it is further insisted by counsel for the plaintiff that under the other allegations of the petition the beneficiary is not entitled to the fund arising from these policies of insurance. In both policies of insurance the beneficiary was named as "Mattie H. Clements, wife." It is urged that the intention of the deceased was that, this insurance should be paid to the beneficiary after she became his wife, and that no such relation was ever established the named beneficiary is not entitled to receive the fund arising from these policies. If the insurance has been made payable generally to the wife of the insured, under that general designation, no one would be entitled to the insurance except his wife; but where the designation of the beneficiary as the wife of the insured is descriptiVYJ only, she being named, it is immaterial whether she is his lawful wife, or even though another person is his lawful wUe or even though he is only engaged to the person named, and designated as wife, or even though he was not even engaged to the beneficiary. 3 7 C. J. 567 Section 326 (4). In Story vs. Williamsburgh Masonic M. B. Ass'n 95 N. Y. 474, it was held that it was not a good defense to an action upon a benefit certificate that the plaintiff was not the lawful wife of the insured, that he had, when they married, another wife living. The court said that this was immaterial, and that the by-law of the association which provided that upon the death of a mem~ ber a sum specified should be paid to his widow, "did not limit the power of the company so as to prevent it from

2 7* recognizing as the beneficiary, a person *designated by a member as his wife; that the certificate operated as an assent upon the part of the defendant to such a designation of the plaintiff and entitled her upon the death of "the insured," in the absence of any other appointment to or any repudiation of the element by either of the parties, to demand to receive the fund." In Tepper vs. New York Life Insurance Co., 89 Misc. Rep. 224, 151 N. Y. S. 1049, the Supreme Court of N. Y. held that: ''Where insured who was engaged to marry Fannie Tepper, changed his policy to designate "Fannie, wife" as his beneficiary, there was a sufficient des-


ignation of Fannie Tepper as the person intended to be designated as beneficiary.''

In Doney vs. Equitable Life Assur. Soc. 97 N. J. law, 393, I 17 A 618, the Supreme Court of N. J. held that: "When the beneficiary in a life insuranc:e policy is pointed out by name, and the word wife is added as an appositive, the party named is entitled as beneficiary even in fact if not the wife of the insured and although he was married to another woman. The word wife held a mere descriptio personae." The d,esignation of a named beneficiary as "wife" was not a warranty but a mere description of the person. Lampkin vs. Travelers' Ins. Co., 11 Col. App. 249, 52 P. 1040, where a husband, whose name was Thompsq_n abandoned his wife whose name was Eliza Jane Thompson, but thereafter promised to marry one whose christian name was Emma L. and obtained a policy of insurance on his life and made payable to his fiance as "Mrs. Emma L. Thompson, wife." The court held that in view of the difference in names, and of his engagement to marry the beneficiary, it was the manifest intention of the insured to name his fiance and not his wife as the beneficiary. Bogart vs. Thompson, supra. The allusion to a beneficiary in certificate as the members wife was mere descriptio personae, and not a warranty to the order that she was a lawful wife and she could recover on the certificate though another was the members lawful wife. Slaughter vs. Slaughter I 86 Ala. 302, 65 So. 348. While the beneficiary in this case name was Mattie Hammond Terrell, and while the beneficiary in this policy is designated as Mattie H. Clements, wife, the identification of the former as the person designated as· beneficiary is not disputed. In fact the petition alleges that Mattie Terrell is the person designated as the beneficiary. As the designation of the beneficiary. as the wife of the insured is merely descriptio and not a warranty, that she was wife, we cannot hold that it was the intention of the insured to make the funds arising from the policy of insurance, payable to a person who was in fact his wife at the time of his death." Italics supplied.

28* Such is the h9ldings of the Federal Courts. *These cases bear out the text heretofore cited in this brief, namely, Cor-


pus Juris, Ruling Case Law, and Couch on Insurance and all of these texts hold the law to be, where there is no illicit conduct involved and where the policy describes the beneficiary properly but erroneously describes this beneficiary as a wife or cousin when in fact this relationship does not exist, this does not bar recovery under the common law and again we reiterate that it could not bar the recovery in this state under the. terms of Code Section 4220.

OTHER VIRGINIA CASES

In the case at bar there is demurrer to the evidence hence the plaintiff's evidence stands uncontradicted

It is not disputed that the insured, in the presence of three other people told the agent that they were not married but only going to get married.

The insured and the beneficiary alike are ignorant colored people and they had a right to rely upon the fact that the agent would put d0wn all necessary statements. In fact, the agent filled in the application and the insured signed it. In Modern , Woodmen of the World vs. Lawson, r 10 Va. 81, at pages 86 and 8 7, this is said in part:

"***It is a matter of common knowledge that the business of insurance companies is necessarily transacted thru agents, and they are presumed to know better than the public with whom they deal the requirements of their companies. Consequently an applicant for insurance has a right to depend upon the superior knowledge of the agent, and, in the absence of notice of l~mitations upon his powers to

29 * assume that his authority *is commensurate with the nature of the employment and in good faith to act upon information imparted by the agent, and to follow his instructions in all matters pertaining to the preparation of the application. It would be indeed a mischievous doctrine to allow a beneficial society, whose officers and agents had induced a member to join by false and misleading representations as to the purport and effect of certain questions in the application for membership, after loss to make such misconduct the ground for forfeiture***.''


There is no proof that the insured or the beneficiary knew of any limitation on the agent's power. In Mutual Benefit Association vs. Ratcliff I 63 Va. 3 25 at pages 334-35 this is said in part:

"***A soliciting agent with power to take applications is the agent of his company. Where the applicant has no knowledge of limitations upon his power he may assume that they are co-extensive with the business entrusted to his care. He has all ostensible power. Royal Ins. Co. vs. Poole, I 48 Va. 3 6 3 S. E. 48 7; Royal Indemnity Co. vs. Hook, 155 Va. 956, 157 S. E. 414; 2 Joyce on Insurance; Section 4 72. But the insured must rtot have been responsible for any mistake or omissions. Harrison vs. Provident Relief Ass'n., 141 Va. 659, 126 S. E. 696, 40 A. L. R. 616. The applicant did not disclose all that he knew about his heart condition. The answer as written was manifestly as he wished it to be written * * *." It is true that Judge Campbell, in the Butts Case, said that

the beneficiary could not collude with the insurance agent put a fraud upon the insurance company but the· plaintiff's proof was, in the Butts case, that he told the agent that Lillian Smith was his "woman" and this court has heretofore held that a man and woman living in lascivious co-habitation was an increased risk over a man who was living a clean life and hence the statements admittedly made by the beneficiary in the Butts case were material to the risk under code section 4220.

3 o * No such conditipn exists in the present case and hence again we say the Butts case is not important.

Mutual Benefit, etc., Ass' n vs. Alley, 167 Va. 144. In that caee. we have a condition where a railroad engineer made false statements as to his health. The policy was both a health and accident policy. The insured was killed in a wreck and hence it was contended that even though the insured made false statements as to his health, still the plaintiff contended that there was no causal connection between the false representations and hi~. death in- an accident. But this court pointed out in that case that there was two fallacies in the plaintiffs argument. First, that Section 4220 deals with the inception of the policy and not with the execution of it, in that the law provides that if the rep-


resentations are material to the risk "when assumed" and hence if the engineer made false statements when the policy was assumed, it was a bar to recovery under the express terms of the statute and further the court held that the premiums were one and inseparable.

Had the engineer's policy been an accident policy only, then he would probably have recovered because his statements regarding his health would not have been material to the risk.

The last Virginia case that we wish to discuss is the case of Shepherd vs. Sovereign Camp, 166 Va. 488. In that case the facts were about as follows: the insured, John Bright, lived in Norfolk and was a member of the Woodmen of the World Organization. He took out a $1000.00 insurance certificate with this organization operating under fraternal insurance laws. His

wife died and he changed the beneficiary to that of a young 31 * lady that he and his wife had raised. He had never *adopt-

ed her but had raised her from infancy. The defendant in that case defended on the basis that under section 42 78 of the Virginia Code the plaintiff could not recover because she was not in the class there desig_nated as beneficiaries, which required her to be a "legally adopted child." The court refused to abide by such a strict interpretation which would have automatically allowed the policy to be forfeited but instead, on the bottom of page 493, said in part:

"***We therefore hold that the right of the insured to designate a beneficiary was governed by the section of the association's constitution and by laws quoted above and not by Code Section 4278, as amended.

This brings us to the question: Was Tessie N. Shepherd an "adopted child" with:n the meaning of the constition and by-laws?

Despite the fact that contracts of this nature have been the source of constant litigation we have been able 'to find no case dealing with the precise point here involved. But the principles according to which these policies should be construed are well fixed * * *.''

But the defendant in the case at bar could not see cause to introduce its by-laws or charter. Neither did it see cause to offer any proof to show that it was not operating under the general

Minnie Green vs. Southwestern Voluntary Asso., Inc 2 7

insurance laws of Virginia. Still it insisted that it should pre• vail in the lower court and the lower court so held.

32* *CHAPTER 411 OF THE 1936 ACTS

The final and last question to be considered in this case is even though the court should hold that the defendant c~n rely. upon Chapter 411 of the 193 6 Acts, then two issues arise. First, whether or not the statement made that the beneficiary should be Minnie Green and then described her as his wife, when in fact she was not, does that defeat the policy under section 4220 which applies to all insurance issued in Virginia?

The same argument and the same case as heretofore cited is sufficient to illustrate our stand on this point. Again we remind the court that under the law of 4220, it was the defendant's· burden and not the plaintiffs burden, to show that the statements made were warranties and that they were material to the risk. The next and last issue is even though the defendant be classified as a burial insurance association, can the plaintiff prevail? In discussing this point the plaintiff does not waive its contention that the defendant has not qualified in law to be covered by the burial insurance laws, but still contends, so far as this record is concerned, that the defendant is covered by the general insurance laws. The defendant in the lower court contended, first, that the pofay was obtained through fraud and misrepresentation and by the plaintiff falsely stating the name of the plaintiff who is the beneficiary to be his wife when in fact she was not. These facts the plaintiff took issue with and

on a demurrer to the evidence, the plaintiff's evidence stands 3 3 * uncontradicted. Therefore, the defendant takes * a posi-

sition that it cannot support in law but according to the pre::ent statute none of the contentions of the defendant below are good unless he continues further and proves as a special defense that they were material to the risk when assumed, all of which the defendant failed to do. In this same brief, in the case of Flannagan vs. the Mutual Insurance Co., 152 Va. 338, at page 6 7, Judge Holt in speaking for the court was careful to point out that although the statements were false and fraudulent, still even that was not the test and we quote:

"***The Revisors were of the opinion that if the answer or statement' was material to the risk when assumed and


was untrue, that no recovery should be had, but that if immaterial although false and fraudulently made that it should not bar recovery for the reason that such a statement could not have affected the risk, being immaterial to it. If the statement was material, although innocently made, of course no recovery should be allowed. Revisors note, Code r 9 r 9, Section 4220* * * ." Italics supplied.

As to the last point, can the plaintiff qualify to take ·under Chapter 4 r r of the r 93 6 Acts, or more particular! y known as Section 4258 (7) of the 1936 Virginia Code.

If the court will but compare Section 4258 (7) to that of 4278 which covers general fraternal insurance companies, it will be noted that they are practically alike and in both of these statutes the legislature lays down who may be beneficiaries under each section. It w11l be noted that both statutes recite. for instance, "children by legal adoption or to a person or persons dependent on the insured."

The last time that either of these statutes has been construed even though they are practically word for word was in the

case of Shepherd vs. Sovereign Camp, r 66 Va. 488, which 34 * *case has heretofore been discussed in this brief. In short,

the insurance company claimed the beneficiary could not take because she was not a "legally adopted child." But the court took a broad view to see that right and justice prevailed and allowed the plaintiff to recover even though she was not, in the words of the statute, "a legally adopted child:'

The plaintiff alleged in her notice of motion in the case at bar, that she was the beneficiary under the policy and a dependent.

The statute 425 8 ( 7) does not attempt to detail as to what is meant by dependancy and hence we are forced to look to the common law for a proper definition. The plaintiff was not required by the defendant to file a bill of particulars to specify how she was a dependent and hence when the plaintiff went to trial on her notice of motion and upon the general issue pleaded by the defendant, she went upon the stand and detailed certain facts. First, that she made her living by washing and ironing and that after she became engaged to the insured, that she


gave up her washing and ironing and went to work in a resta .. urant owned by her engaged husband. That she had no income after she went to work for him but that he paid her room rent, he bought her wedding clothes, he furnished her home. He saw that her every want was cared for and there being no proof of illicit relationship. Therefore, even if the court should hold, ( which the plaintiff says there is no pleading or evidence to sup-port it) that the defendant is entitled to be governed by Chapter 411 of the 193 6 Acts, still the plaintiff says that as there was

no evidence of illicit connection, that she is entitled to 3 5 * * recover as a dependent, and hence in 1 4 R. C. L. Section

553, titled Insurance, pages 1385-6, this is said:

"A dependent, as the term is used in reference to persons who may be named as beneficiaries in a benefit certificate, is one who is sustained by another ,or relies for support upon the aid of another. The law does not undertake to prescribe just what degree of dependence is necessary. The test in each case should be good faith, purity of purpose, material dependence and material support. It has been said, however, that the dependence required is one resting upon some moral, legal, or equitable ground, not a dependence which is only a matter of favor, which is founded upon the mere whim or caprice of the member, and which may be cast aside by him without violating any legal or moral obligation."

In 29 Am. Jur., page 320 under Section 364, this is said:

"One who is dependent on another for support has an inmrable interest in the latter's ·life, even though there is no legal right to support, if there is reasonable ground for believing that the support will be continued. Thus, an insurable interest may be predicated upon a moral obligation of the insured to render care and assistance to another."

Aga!n on pages 321 of the same Volume under section 366, this is said:

"The cases are agreed that one has an insurable interest in the life of another whom one is engaged to marry."

Again, even though it is repetition, but because it is so near-1 y in point, particularly in this case where the beneficiary was


erroneously described as wife, still, according to Couch, that does not keep her from being a dependent. If in fact she meets the requirements of the law as the plaintiff has, we quote from 2

Couch on Insurance, page I 265:

"* * * And the fact that a person is erroneous! y descri bed in a beneficiary clause as wife is generally held not sufficient of itself to deprive her of an insurable interest, or to prevent her from taking in some capacity in which she is. eligible such as, for example, as a "dependent." Italics supplied.

3 6 * In one of the earliest cases on this point and many times cited by the courts of the land, we quote from McCarthy

vs. Supreme Lodge, etc., 153 Mass. 314, 25 A. S. R. 637 there the insured persuaded his engaged wife to leave her employment in a Boston restaurant and to move inland to his home town at a lesser salary. He, the insured, making up the difference. And it further appeared from the record that they had had a lover's quarrel at the time he died. In allowing the engaged wife to recover, the court said on page 641:

"***It is questionable too, whether McCarthy's promise to contribute to her support could have been legally enforced by her. Butt we think, in view of the relation between them, she had a right to receive and depend on "his, assistande, and thar he was under a moral obligation after promising it to continue to furnish it. She in fact depended on it, and was aided by it for many months, and down to his death. The money was not given by him or received by her as a charity but was given and received by her· as his intended wife,-as a person who, in some sort, had a claim upon him; and whatever his legal rights may have been. it plainly was not expected by either, that, so long as the relation between them continued, his assistance would not be refused or withheld; and so her dependence on him had a certain quality of permanency, and was not casual or merely temporary." Italics supplied.

To the same general effect is a monograph in 113 A. L. R. at page 15 24 supplementing 1 7 A. L. R. at page 5 80.

Minnie Green :vs. Southwestern Voluntary Asso., Inc. 3 1

In the Virginia case of Pettus vs. Hendricks, 1 1 3 Va. 3 2 7, our Court of Last Resort had a certificate issued by a fraternal society and several parties claiming the fund. The insured, prior to his death had requested the association to name Mrs. Pettus as his beneficiary. This request for one reason or another was never effectuated and the case went off on the point

that so far as Mrs. Pettus was concerned, she was never 3 7 * named as beneficiary, but on the bottom of page 3 2 7 the

court had these very important and instructive words to say:

"Mrs. Pettus was not a relative of Burbank, nor was she in any manner dependent upon him, but it seems that there was an engagement of marriage behyeen them. Burbank, it appears, knew that the association did not act upon his request to change his beneficiary, and there is conflict of evidence as to whether he requested Ellas Hendricks to return the certificate to him which had been issued to her. The minutes of the Association show no other mention of the attempted change of the beneficiary between Oct. 6, 1908, and the death of Burbank."

The importance of the above question is simply this, that if Mrs. Pettus had of been properly registered as a beneficiary she would have prevailed, what Mrs. Pettus failed to do this plain .. tiff has done.

The last case upon this point on which we rely, is Modern Woodmen vs. Eura Noel, 41 L. R. A. (N. S.) 648 which case is a review of a great many of the decisions upon this point. On page 6 5 1 the Court was quoting with approval from other cases. There it said:

"***The dependence which is there meant is a dependence resting upon some moral, legal, or equitable ground; not a dependence which is only a matter of favor, founded upon the mere whim or caprice of the member, and which may be cast aside without violating any legal or moral obligation."

Again in the same opinion it seemed that from the brief of the insurance company, they claimed that the demand was a vicious attack on it and the court said on page 65 2:

-·--


''***It is not an unusual demand, nor one which tends to thwart the laudable purposes of the order. She is simply asking for that which both the statutes and the rules of the order authorize her to receive. Hence the only ques-

3 8 * tion is whether the facts bring *her within this rule. It is not a question of protecting the order against vicious and unjust verdicts, as suggested by counsel. It is simply a question of determining the legal rights of parties in a controversy wherein equal justice shall be meted out to each."

Again the court said in the same case on page 6 5 3:

"The issue to be tried was the simple question whether her dependence was of that degree which would justify a recovery. 1n determining the issue there was other circum~ stances to be considered therewith, among which were: The amount of support, the obligation to give same, the fact of her being the affianced wife, and the fact of whether a judgment in favor of plaintiff under this evidence and under the circumstances would do any violence to the purposes of thl order. These questions were all before the court and the jury, and from the evidence in the case and the circumstances surroundings same, the jury found as a fact that she was a dependent within the meaning of the law and the rules of order, and from a study of the record we see no reason for disturbing the verdict. The courts have universally considered this to be a question of fact to be determined from the evidence in each individual case***."

As we close may we again for purpose of emphasis quote from Volume 2 Couch on Insurance, page 1265:

"***And the fact that a person is erroneously described in a beneficiary clause as wife is generally held not sufficient of itself to deprive her of an insurable interest, or to prevent her taking in some capacity in which she is eligible, such, for example, as a dependent." Italics supplied.

Hence even though the court holds, over our protests, that the defendant in this record is entitled to be governed by Chapter 41 I of the 193 6 Acts, still the plaintiff can recover because, first, there is no proof of that the misstatement of wife has increased the chance of loss under section 4220.


And according to Couch on Insurance, if she is a dependent she can still recover and under the testimony in this case and under the laws laid down by the writers and decisions in the

courts of last resorts, unquestionably the plaintiff should 3 9 * prevail because a dependency within the meaning of the

law here does not mean a hard and fast rule as this court held in the Shepherd case, 166 Va. 488. Therefore, the court should have held that a dependent within the meaning of the law, so far as this case is concerned, does not necessarily mean the legal relationship of wife or husband, parent or child, or other blood kinship, but dependency may arise, as here contended out of a moral. legal, equitable, or manly duty to support or contribute in a material way to the alleged dependent by reason of a promise to marry connected with other circumstances as is alleged in this case and the court should have held it is not necesrary that this duty to rupport be a legal duty such as is enforceable in law.

Unquestionably the above statement is the true rule, as to dependency, deductable from both the text and the cases, federal and state, and therefore since the defendant demurred to the evidence, surely the plaintiff should have prevailed even under the defendants contention because her evidence entitles her to a recc·very regardless cf whether the defendant operates under the general insurance laws or Chapter 41 1 of the r 93 6 Acts.

*CONCLUSION

In conclusion, the plaintiff in this case is an ignorant colored woman which is amply proved from reading her testimony. The plaintiff was the beneficiary in a policy in force at the time f ,,.t the in,"'nred died. Wh~n t~,e aorylication was taken, the insured and three witnesses heard the conversation between the agent and the insured, and the agent was told that he and the beneficiary were not married but were going to get married at once. So, rather than rewrite another policy within a few days, the agent put the name of the beneficiary down, who is one and the same person who was intended to receive the benefits of this insurance policy and after naming her in person, preceeded to erroneously describe her as wife.

The plaintiff contends that under the law of Virginia, Code Section 4220, that before the defendant can set up false state-


ments as a bar to recovery, that the defendant must prove these statements to be material to the risk when assumed and in interpreting this statute in the Walker case, this court held that before it was material to the risk, the defendant must show that the fact which was untrue, substantially increased the chances of loss. We close on this very important point by saying that the defendant never offered a single line of testimony nor a single case supporting its contention that where the relationship alone was erroneously stated that this amounted to a material change. If the defendant is sincere in its contention that the mere fact that the beneficiary was erroneously described as wife, when in fact

she was only his engaged wife, then it should have offered 41 * proof that this fact * was a warranty instead of a misrepre-

sentation under section 4220 of the code and clearly proved that it was material to the risk when assumed, by proving that the misstatement increased the chances of loss. The defendant tried to return the premiums and release itself from further liability but even if the policy provided that, still that is contrary to the express terms of Code Section 4220 and hence of no avail.

Again the plaintiff has contended that under the general insurance laws of Virginia that unquestionably, she should prevail because she testified that she had an engagement with the insured to marry him, this giving her an insurable interest,. This the defendant can not successfully deny, therefore, for a defense, it contends it is not operating under the general insurance laws of Virginia but under Chapter 411 of the 193 6 Acts.

But the p1aintiff ·takes frsue with the defendant on its right to rely upon Chapter 41 1 of the 193 6 Acts because the plaintiff contends that all insurance contracts are presumed to have been issued and governed by the general insurance laws of Virginia. Second, it contends that before the defendant can take advantage of Chapter 41 1 of the 193 6 Acts it must allege and prove in no uncertain terms that it is chartered, licensed, and doing business, not under a general insurance law of Virginia, but under a special act, namely, Chapter 4 Ir of the 1936 Acts.

The plaintiff substantiates her contention by citing C. J. 7, page r 5 5, Section I where the learned author said, "and a re

cital in a certificate issued to a member is no ev:deri·ce that 42 * the society is a benevolent association." This text was sup-


ported by the case of Thompson vs. Royal Neighbors of America, 1 3 3 S. W. 1 46 and there the court on page I 49 said. 'are matters of affirmative proof., and not to be assumed if existing solely by a recital in the certificate." Therefore, we take it fore granted that the defendant can not successfully contend in this record that it is governed by Chapter 411 of the I 93 6 Acts but instead by the general insurance laws, because it has failed to show that it is chartered, licensed, or doing business under Chapter 41 1 of the 193 6 Acts except by a mere casual reference in paragraph nine of the contract and which the authorities hold is not sufficient. This is but an application of the time worn principle that he who relies upon a fpecial plea must allege and prove it.

Therefore, the plaintiff squarely plants her feet upon Section 4220 of the Virginia Code and upon the general insurance laws of Virginia, which laws do not attempt to classify, who may or who may not be a beneficiary and hence she should prevail.

May we here remind the court that this company has received its premiums, it has failed to prove that the misstatement was material to the risk, in that it increased the chances of loss. Yet, even though it has been paid for the carrying costs, to carry the risk, still it refuses to pay and we are reminded particularly of the spirit and the reason which brought about the passage of Code Section 4220 and that was this. The common law doctrine of warranties in inrnrance contracts was so rigorous that the legislature in its wisdom decided that ~n insurance company,

after it had received its premiums, should not be allowed to 43 * defend upon the theory of a breach of warranty unless *the

mi~Ttatement increased its chance of loss, and so in the case of Standard Accident Insurance Co. vs. Walker 127 Va. 140

Judge Prentis speaking for the court at page 145 said:

"***As has been indicated, when an insurance company has received its premiums, its efforts to escape liability when the contingency upon which its liability is created happens are closely scrutinized * * *.''

The defendant pitches its whole defense around the Butts case 158 Va. 259, which case is but a continuation of the rule laid down in the Lindsay case, 1 1 i Va.


In both of these cases, the court held that the false statements amounted to a breach of warranty because in each case, the plaintiffs, who were the beneficiaries, we~e living an indecent life with the insured and hence it was not only a question of erroneous statement as to relationship, but in addition, against public policy of this state to allow the plaintiff to win because we do not recognize common law marriages and we have a statute prohibiting lascivious co-habitation and so Judge Harrison,' speaking for the court in that case, on page 392, said in part:

"***It cannot be doubted that a man who, in violation of law, is living ;n /,ewd and la':dvio:is cohabitat:on with a woman is a less desirable risk than one who is /leading a regular clean life * * *." Italics supplied.

But in the case at bar, there is not one line of proof of any unclean living on the part of the plaintiff with the insured and hence the Butts and Lindsay cases have no application.

The reason the defendant relies upon section 4258 (7) is because that section, which is a part of Chapter 41 1 of

44 * the * 193 6 Acts, attempts to limit who shall be beneficiaries under policies issued by companies chartered, licensed,

and doing business under Chapter 4r I of the 1936 Acts.

By reason of the law and evidence as heretofore set out, the plaintiff believes she has amply sustained her assignments of errors in that the court errored in sustaining the defendants demurrer to the evidence and in not holding spec

1

ifically:

a. That there was no misstatement which was material to the risk when assumed according to section 4220 of the Virginia Code, which section applies to all insurance contracts of every kind issued in Virginia.

b. That the defendant was not operating under Chapter 4 r I of the 193 6 Acts under the evidence in this case, but instead was operating under the general insurance laws of Virginia which laws do not attempt to require the beneficiary to be in any particular class, such as dependent, etc., and that the plaintiff had an insurable interest in the life of the insured because of her .engagement to marry him and entitled to recover.

Minnie Green vs. Southwestern Voluntary Asso., Inc. 3 7

c. That even though the defendant was operating under Chapter 41 1 of the 193 6 Acts, the plaintiff was still a depena~ ent within the meaning of the law, and entitled to have a final judgment entered, in her behalf, upon the juries verdict.

May we in our parting words urge the court with all the power at our command and all sincerity in our hearts that this defendant should be required to pay this claim, the lower courts judgment reversed, and a final judgment entered in this court for the plaintiff.

45 * This petition will be relied on as the brief for appellants.

A copy of this petition was delivered to Messrs. Jones and Woodward, opposing counsel of record, on November 22nd, 1941 at their offices in Bristol, Va.

Respectfully submitted,

MINNIE GREEN amended to read MINNIE DONALD,

By CLAYTON SCYPHERS, Counsel.

I, Clayton Scyphers, an attorney practicing in the Supreme Court of Appeals of Virginia, do certify that in my opinion the judgment complained of in the foregoing petition is erroneous, and should be reviewed and .reversed by said Court of Appeals.

Given under my hand this the 22nd day of November, 1941.

CLAYTON SCYPHERS, 1 o Lee Street B r i s t o l, Virginia

December 3, 1941. Writ of error awarded by the court. Bond $300.

M.B.W.


RECORD Virginia:

In the Circuit Court of Washington County:

Minnie Green, amended to read Minnie Donald, Plaintiff vs.

Southwestern Voluntary Association, Inc., Defendant.

BE ,IT REMEMBERED that heretofore, to-wit:

''t·

One the 1st day of September, 1941, came the plaintiff, Minnie Green, by counsel, and filed before the clerk of said court

her Notice of Motion for Judgment against Southpage 46 ] western Voluntary Association, Inc., And be it fur-

ther remembered that heretofore, to-wit: on the 11th day of October, 1941, came the plaintiff, Minnie Green by counsel and filed before the clerk of said court her amended Notice of Motion for Judgment against Southwestern Voluntary Association, Inc., which notice of motion and amended notice of motion is in the following words and figures, to-wit:

NOTICE OF MOTION FOR JUDGMENT

To the Southwestern Voluntary Association, Inc., of Bristol, Virginia:

You are hereby notified that the undersigned, Minpage 4 7 ] nie Green, colored, will move the Circuit Court of

Washington County, Virginia, at the courthouse at Abingdon, Virginia, at 9 A. M., on the 22nd day of September, I 941 ( that being the first day of the September term of that court) or as soon thereafter as she may be heard, for a judgment against you in the sum of $300.00, due by you to the undersigned by reason of the fact that you issued a life insurance policy dated March 15, I 94 I on the life of Robert Clayton Green, colored, which policy named the undersigned, Minnie Green, as beneficiary, who was also a dependent of the insured, Robert Clayton Green, and which policy bore your number 7-100-92 I 3, and that while this policy was in force and in effect, the said Robert Clayton Green, the insured, died, and by reason of his death, and by reason of your insurance contract heretofore


mentioned and described, you agreed to the terms thereof to pay the said undersigned the sum of $300.00 which you have refused to do, after demand was made upon you in due form.

Therefore, for the above reasons, the plaintiff will move the court at the time and place heretofore mentioned for a judgment against you for the sum of $3 00.00, and costs.

MINNIE GREEN, colored, By CLAYTON SCYPHERS ,

Atty.

page 48 ] Which said notice is endorsed on the back thereof as follows:

Executed in Bristol, Virginia on August 29, 1941, by delivering a true copy of the within notice of motion in writing to E. F. Willis, Secretary and Treasurer of the Southwestern Voluntary Association, Inc., of Bristol, Virginia.

Filed: Sept. I. I 94 r,

WORLEY T. CROSSWHITE, Sergeant City of Bristol.

J. N. HILLMAN, JR., D. Clerk.

AMENDED NOTICE OF MOTION FOR JUDGMENT

To the Southwestern Voluntary Association, Inc., of Bristol, Virginia:

Now comes the plaintiff by counsel and for an amended notice of motion says the true name of the plaintiff is Minnie Donald.

MINNIE DONALD, colored By CLAYTON SCYPHERS ,

Atty. CLAYTON SCYPHERS, Bristol, Virginia.

Which said amended notice is endorsed on the back thereof as follows:

Filed October Ir, 1941,



And at another day, to-wit:

page 49 ] Saturday, October 11, 1941.

This day came the parties by their attorneys and the defendant filed its plea of the general issue, to which the plaintiff replied, and issue is joined. Thereupon came a jury of se~n, to-wit:

I. J. Holmes, Stanley Scott, W. Blair Keller, C. B. Buttry, J. D. Counts, Hubert Hensley and W. G. Farris, who were selected and sworn according to law to try the issues in this case and having heard the evidence and argument of counsel retired to their room to consider of their verdict and after some time returned into court having found the following verdict:

"We, the jury, find for the plaintiff in the amount of $300.00 subject to the opinion of the court on the demurrer to the evidence.


October 24, I 94 I.

Wm. G. FARRIS, Foreman.

FINAL ORDER

This day came the plaintiff and defendant in the above styled action, by counsel, and the court having taken time to consider the demurrer to the evidence previously filed herein by the defendant in which the plaintiff had joined at a previous day of this term and the same having been argued by counsel after submitting briefs, the court is of opinion for reason assigned in writing which on motion of counsel for defendant is filed with

and hereby made a part of the record in this action page 5 o ] to sustain the demurrer and doth hereby sustain the

~amc; and it is hereby ordered and adjudged that the plaintiff take nothing of her notice of motion for judgment and that the defendant recover of the plaintiff its costs in this behalf expended, to which action of the court in sustaining the demurer to the evidence and in rendering judgment for the defendant, the plaintiff, by counsel, duly excepts.

Minnie Green vs. Southwestern Voluntary Asso., Inc. 4 r

And the plaintiff having signified her intention of applying to the Supreme Court of Appeals of Virginia for a writ of error and supersedeas, it is ordered that execution be suspended for a period of sixty· days upon the execution of a suspending bond by the plaintiff or someone for her in the penalty of $25 ... oo conditioned according to law.

WALTER H. ROBINSON, Judge.

Which said order is endorsed on the back thereof as follows: I 0-24-4 I

0. K.-W. H. R., Judge.

(Entered in Law Order Book-X-page 427, Circuit Court of Washington County.

On the same day to-wit:

OPINION OF THE COURT ON DEFENDANT'S DEMURRER TO THE EVIDENCE

The defendant demurred to the evidence. My opinion is that the demurrer is good and judgment must go, on the demurrer, for the defendant.

The plaintiff (and the assured) are charged with page 5 1 ] knowledge that Chap. 4 r I of Act of 1936, p. 777,

Chap. 169A (Secs. 4258 (1) to 4258 (15) of the code was applicable. The question of relationship in the application put them upon such notice-Also Sec. 9 of the Conditions in the policy. They are bound, any how, to take notice of the law.

The plaintiff take:; the po~ition that the agent who took the application was told that plaintiff was not the wire of assured -and that the defendant is charged with that knowledge. On demurrer to the evidence it must be taken as true that the plaintiff and assured told the soliciting agent that they were not married. But they cannot relieve themselves of fraud because the company's 'agent colluded with them in its perpetration.

The plaintiff takes the position that although she was not the wife of assured she was dependent on him. But the contract


was made on the strength of the statement of plaintiff and assured that plaintiff was assureds' wife. Even if plaintiff was a dependent that was not the inducement to or a part of the contract-And even if her statement at the trial tbat she was a dependent of assured, or that she worked for him, or that he supported her is admissible evidence, it shows that she is not a dependent within the meaning of the law. Time forbids that I write a lengthy opinion.

I think the following authorities support my conclusion that the demurrer to the evidence is good.

Provident Relief Association vs. Butts 158 Va. 259 163 S. E. 66, Mutual Benefit etc., vs. Ratcliff 163 Va.

page 52 ] 325 Burress vs. National Life 96 Va. 543, 551 Code Va. Section 425 8 ( 7).

W.H.R., Judge.

Which said opinion is endorsed on the back thereof as follows:

Filed Oct. 24, 1941,



October 30, 1941.

. Ordered that bond may be executed by Minnie Green, plaintiff, or some one for her, on this date the court having inadverently omitted in the order entered on Oct. 24th 1941 the provision that bond might be executed within ten days therefrom. This order is entered with approval of Wpi. Woodward of counsel for defendant, within ten days of the previous order, and within ten days from the adjourning of the term.

To W. Y. C. WHITE, Clerk,

Enter this order, this Oct. 3 o, 1941.

WALTER H. ROBERTSON, Judge.

(Entered in Law Book X page 436, Circuit Court of Washington County).


TO: Messrs. Jones and Woodward, Attorneys for page 5 3 ] Southwestern Voluntary Association, Inc.

You are hereby notified that on 22nd of November, 1941, at nine oclo'ck A. M., we will apply to Mr. W. Y. C. White, Clerk of the Circuit Court of Washington County, Virgin1a, at his office in Abingdon, Virginia for a transcript of the record in the law case of Minnie Green, amended to read Minnie Donald, Plaintiff, vs. Southwestern Voluntary Association, Inc., Defendant, lately pending in said court.

Given under my hand this November 22, 1941.

CLAYTON SCYPHERS, Counsel for Plaintiff.

Service of the above notice is waive dand accepted this November 22, 1941.

JONES & WOODWARD, Counsel for Defendant.

NOTICE

page 54 ] TO: Messrs. Jones and Woodward, Attorneys of Record for Southwestern Voluntary Association,

Incorporated:

Please take notice that the undersigned will, on the 2 2 day of November, 1941, at the office of the Hon. Walter H. Robertson, in Abingdon Virginia, Judge of the Circuit Court of Washington County, Virginia, at ten o'clock a. m., or as soon thereafter as she may be heard, tender to the said judge Certificate of Exceptions in the case of Minnie Green, Plaintiff, vs. Southwestern Voluntary Association, Inc., Defendant, copy of which is hereto attached, ·and (apply to the said court to sign and seal the same, and make it a part of the record in this case.

MINNIE GREEN, By CLAYTON SCYPHER,

Counsel. Legal service of the foregoing notice is here by accepted. This

the 22 day of November, I 941. SOUTHWESTERN VOLUNTARY ASS'N., INC.

By JONES & WOODWARD, Counsel of Record.


CLERK'S CERTIFICATE

page 55 ] L W. Y. C. White, Clerk of the Circuit Court of Washington County, Virginia, do hereby certify that the foregoing is a true and correct transcript of the record in case of Minnie Green, Plaintiff, vs. Southwestern Voluntary Association, Inc., Defendant, lately determined in said Court, and I do further certify that counsel of record for the said Defendant had due notice of the intention of counsel for plaintiff to apply for said transcript before the same was made out and delivered.


W. Y. C. WHITE, Clerk, By J. N. HILLMAN, JR.,

Fee for this transcript $5.00. Paid by plaintiff.

W. Y. C. WHITE, Clerk.

Deputy Clerk.

By J. N. HILLMAN, JR., D. C.

STIPULATION

page 5 6 ] It is stipulated between _attorneys for both parties that the foregoing stenographic report of testimony

and other incidents of the trial therein, shall be considered in lieu of formal Bills of Exceptions, and that all questions raised, all rulings thereon, all exceptions thereto, and the grounds of such exceptions, respectively, as shown by said report of testimony, and other incidents of the trial therei~ may be relied upon by either or both parties, in the Supreme Court of Appeals, without taking separa_te Bills of Exception as to each point raised and excepted to.

. -...

This the 22 day of November, r 941.

CLAYTON SCYPHERS, Counsel for Plaintiff.

JONES & WOQDWARD, of Counsel for Defendant .


ORDER

page 5 7 ] This day came the plaintiff by her attorney, and the Plaintiff, by counsel tendered to the judge for

signature a stenographic report of testimony and other incidents of the trial in the above styled case and Certificate of Exceptions; and, it appearing to the Court, in writing, that Messrs. ]dne~ and Woodward, attorneys of record for the Defendant, have had reasonable notice that said stenographic report of testimony and other incidents of the trial and Certificate of Exceptions would be presented at the time and place to the Judge for signature, the said stenographic report of testimony and other incidents of the trial and Certificate of Exceptions, was on this the 22nd day of November, 194 r, within sixty days f.rom the time final judgment herein was entered, received, signed and sealed by the Judge of this Court, and ordered to be made a part of the record in this case.

WALTER H. ROBERTSON, (Seal) ~Judge.

JUDGE'S CERTIFICATE

page 5 8 ] I, Walter H. Robertson, Judge of the Circuit Court of Washington County, Virginia, who presided

over the foregoing trial of the case of Minnie Green, Plaintiff vs. Southwestern Voluntary Association, Inc., do certify that the foregoing is a true and correct copy and report of all the evidence, together with all the motions, objections, and exceptions on the part of the respective parties, the action of the court with respect thereto, all the instructions offered, amended, granted, and refused by the court, and the objections and exceptions thereto; and all other incidents of the said trial, with the motions, objections and exceptions of the respective parties as therein set forth.

And I further certify that the attorneys for the defendant had reasonable notice, in writing, given by counsel for the plaintiff, of the time and place when the foregoing report of the testimony, instructions, exceptions and other incidents of the trial would be tendered and presented to the undersigned for signature and authentication, and that the said report was presented to me on the 22nd day of November, r 941, within less than sixty days from the entry of the final judgment in said cause.



WALTER H. ROBERTSON, (Seal) Judge of the Circuit Court of Washington County, Virginia.

CLERK'S CERTIFICATE

page 59 ] I, W. Y. C. White, Clerk of the Circuit Court of Washington County, Virginia, do hereby certify that the foregoing is a copy of the report of testimony, instructions, exceptions, and other incidents of the trial in the case of Minnie Green, Plaintiff, vs. Southwestern Voluntary Association, Inc., Defendant, and that the original thereof and one copy, duly authenticated by the judge of said court, were lodged and filed with me a~ Clerk of the said court on the 22nd day of November, I 94 I.

By W. Y. C. WHITE, Clerk J. N. HILLMAN. JR., Deputy Clerk

of the Circuit Court of Washington County, Virginia.

page 60 ] KNOW ALL MEN BY THESE PRESENTS, That we Joella Thomas and William H. Brown are

held and firmly bound unto the commonwealth of Virginia, in the sum of Twenty-five and No/ 1 oo dollars, to the payment whereof, well and truly to be made to the said Commonwealth of Virginia, we bind ourselves and each of us, our and each of our heirs, executors, administrators and successors, jointly and severally, firmly by these presents. And we hereby waive the benefit of our exemption as to this obligation. Sealed with our seals and dated this 30th day of October one thousand nine hundred and forty-one.

THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, That whereas at a Circuit Court held for the County of Washington on the 24th day of October I 94 I, in a certain action at law then pending in the said court between Minnie Green, plaintiff, and Southwestern Voluntary Association, Inc., defendant. a judgment was entered against the plaintiff and whereas, on the 24th day of October, during the ~ame term at which the said judgment was entered, the said court, in order to


allow a said Minnie Green to apply for a writ o.f error and supersedeas from said judgment made an order suspending the execution of the said judgment for the period of 60 days from the date thereof upon the said Minnie Green or someone for her giving bond before the clerk of said court in the penalty of Twenty-five d01Iars, conditional according to law. And whereas it is the intention of the said Minnie Green to present a petition for a writ of error and supersedeas from said judgment; now, therefore, if the said Minnie Green shall pay all such damages as may accrue to any person by reason of the said mspension, in case a writ of error and super;;edeas to the

said judgment shall not be allowed to be effectual page 61 ] within the said period of 60 days, specified in the

aforesaid order of the said court, then the above obligation to be void, or else to remain in full force. Signed, sealed, acknowledged JOELLA THOMAS (Seal) and delivered in the presence of WM. H. BROWN (Seal)

In The Clerk's Office Of The Circuit Court Of The County Of Washington:

This day personally appeared before me J. N. Hillman, Jr. Deputy Clerk of the Circuit Court of the County of Washington, Joella Thomas and William H. Brown, and made oath that their estate, after the payment of all their just debts, and those for which they are bound as security for others and expect to have to pay is worth the sum of fifty dollars, over and above all exemptions allowed by law.

Given under my hand, this 3 oth day of October, 1941.

J. N. HILLMAN, Jr., Deputy Clerk.

page 62 ] VIRGINIA:

In The Circuit Court Of Washington County

Minnie Green, Plaintift vs. DEMURRER TO EVIDENCE

Southwestern Voluntary Association, Defendant

, _ This case came on to be heard on this the 1 1th day of ,~ctober, 1 941, before his Honor, '? alter H. Robertson, Judge

'

\/


Mi1J·nie Greene

of the Circuit Court of Washington County, Virginia, and a jury of seven men duly sw9rn and impaneled to try the issues joined.

APPEARANCES

Clayton Scyphers, Esq., of Bristol, Virginia, Counsel for Plaintiff,

S. Bruce Jones, Esq., of Bristol, Virginia, Counsel for Defendant.

page 63 ] And the said plaintiff, by her counsel, pro-duces to the jury, to maintain the issues on her

part, the following evidence, to-wit:

MINNIE GREEN, the Plaintiff, being first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Scyphers: Q. 1 State what your name is please. A. Minnie Donald. Q. 2 Are you the plaintiff? Did you bring this action?

You are the one suing here? A. Yes, sir. Q. 3 Now, Minnie, I show you an insurance policy, and

ask you if you have ever seen that policy before? A. Yes, sir. Q. 4 Will you file this as part of your evidence in th~s

case? A. Yes, sir.

page 63a ] PLAINTIFF'S EXHIBIT NO. 1

SOUTHWESTERN VOLUNTARY ASSOCIATION

Incorporated Operating Under the Insurance Laws of Virginia

Of Bristol, Virginia '/"


M irmie Greene

CERTIFICATE OF INSURANCE

IN CONSIDERATION of the representations made in the application for this Policy, which application is hereby made a part of this contract, and the payment of the montlily premium stated in schedule below, which latter it is agreed shall at all times be paid in advance to the Association or its authorized representative, on or before the due date each month hereafter during the continuance of this contract, and· upon all the conditions and provisions appearing upon the reverse side hereof, which are hereby made a part of this Policy of insurance as fully as though recited at length over the signature hereto affixed, hereby agrees, upon satisfactory proof of the death of the Insured to pay at once the amount na~ed in schedule, subject to said conditions and provisions, as death benefits to the person or persons named herein as beneficiary.

SCHEDULE ABOVE REFERRED TO

Name of Beneficiary, Minnie Greene; Name of Insured, Robert Clayton Greene; Age Nearest Birthday of Insured, 34 yrs.; Relationship to Assured, Wife; Number of Policy, 7-100,9213; Date, March 15, 1941; Amount of Insurance, $300.00; Monthly Premium, 0.51 Cents.

Payments due under this Certificate may be inade as follows:

Annually, $5.75; Semi-Annually, $2.97; Quarterly, $ 1. 5 1; Monthly, $0. 5 1.

IN WITNESS WHEREOF, Southwestern Voluntary Association, Inc., of Bristol, Virginia, has caused this certificate to be signed and sealed by its President and Secretary, at Bristol, Virginia, this the 15 day of March, I 94 r.

E. F. WILLIS, Secretary R. H. HAWKINS, President

Form No. 7 Revised-Ks 5 789a (SEAL)


Miri-nie Greene

CONDITIONS

1. The terms of this policy cannot be changed or its conditions varied, except by a written agreement, signed by the President or Secretary of the Association. Agents ( which term includes District Managers and Assistant District Managers) are not authorized and have no power to make, alter or discharge contracts, waive forfeitures, or receive premiums 'on Policies in arrears more than four weeks, or to receipt for thle same in the Receipt Book, and all such arrears given to an Agent sha'l) be at the risk of those who pay them and shall not be credited upon the policy, whether entered in the Receipt Book or not, as all policies are void when in arrears more than four weeks, but may be revived within one year from the date of its becoming void as aforesaid by the payment of all arrears; provided that at the time of such payment the insured be in good health and no acceptance of any premium shall be a waiver of this condition. If the policy be allowed to become void all premiums paid shall be forfeited to t~e Association except as provided herein.

2. Unless otherwise stated in the blank space below in a waiver signed by the Secretary, this Policy is void if the insured before its date has been rejected for insurance by this Association or any other order or company: or has had before said date any pulmonary disease, or chronic bronchitis, or cancer, or disease of the heart, liver or kidneys. No liability is assumed by the Association unless the insured is alive and in good health at the time this policy is delivered to the insured. The liability of the Association shall be limited to the amount of the premiums paid hereon if any other policy on said life shall have been previously issued by this Association, and shall be in force at the date hereof, unless this or the previous policy contains an endorsement signed by the President, Vice-President, or Secretary that this policy may also be in force at the time. The Association shall not be presumed to know of the existence of any previous policy, and in such case the issuance of this policy shall not be deemed a waiver of this condition.

3. All payments are due and payable at the office of the

Minnie Green vs. Southwestern Voluntary Asso., Inc. 5 I

M itmie Greene

Association, and the sending of a collector for your payments is only an act of courtesy, and the failure of the collector to call for payments will not be deemed an excuse for non-payment, as the insured can pay their Premiums at the office at any time during office hours, and it shall be the duty of the Insured to notify the Association of any change of residence or postoffice address.

4. If the death or accident of the insured be caused by his or her own hand whether sane or insane or from the result of any violation of the laws of the land; or while Assured was engaged in naval or military service of any country at war whether such war be declared or undeclared; participation, as a passenger or otherwise, in any aeronautic or submarine operation, war, riot or insurrection; the liability of the Association is limited to a return of the premiums paid upon this policy; and, if within one year from the date hereof, whether the insured die or not, the falsity of any statement made by the insured in the application herefor be discovered by the Association and notice thereof be given to the insured or to the beneficiary, th~s policy shall be void, and the association shall pay to the Insured if living, or to the beneficiary, if the Insured be dead, all premiums paid upon this policy; and upon such payments, or tender, the Association shall be relieved of all further liability hereunder. Provided, further, however, that if the Insured dies from any pulmonary, kidney or heart disease, apoplexy, syphilis or tuberculosis in any form, having its inception within one year from the date hereof the liability of the Association shall be one-half the amount that would otherwfre be payable.

5. Proofs of death under this Policy shall be made upon blanks to be furnished by the Association, and shall contain answers to each question propounded to the claimant, physicians, and other persons, and shall contain the record, evidence and verdict of the Coroner's inquest, if any be held.

6. The benefits provided in this policy may be adjusted for mis-statement of age in accordance with the Association's Table of Rates at the date hereof.


M irmie Greene

7. No suit or action at law or in equity shall be maintained to enforce the performance of this contract, unless commenced within one year next after death of the insured under this policy. If any suit be commenced after one year, the lapse of time shall be conclusive evidence against any claim, the provisions of any and all statutes of limitation to. the contrary notwithstanding.

8. The Association shall have the right and opportunity to examine the person of the insured when and as often as it may reasonably require.

9. RESERVE: An amount not less than five per centum of the gross collections from all members shall be set aside as a reserve for the protection of all certificate holders at the time of their death in accordance with Chapter 4 1 1, Acts of Virginia Assembly, 1936; and this fund shall be kept entirely separate from the other funds of the association. Should the payments provided for herein be insufficient to meet the requirements of the association or of the laws of the State of Virginia, the association reserves the right to make additional call or calls.

1 o. When the reserve fund provided for in the preceding paragraph c·xceeds five per centum of the total benefits provided for in the certificates issued and outstanding, such excess shall be uied to settle claims sub~equently maturing and no regular or extra basic premiums shall be levied while such excess exists unexpended in the discharge of such claims.

1 I. Not more than 40 % of the premiums collected may be used for commissions or other expenses.

12. Not more than one person may be insured under any one policy; and the name of the beneficiary and his or her relationship to the insured shall be clearly set forth herein.

SCHEDULE AND TABLE OF RA TES - INFANTILE LIVES UNDER Io YEARS OF AGE AT NEAREST BIRTHDAY.

If at issue of this policy the age of the Insured is less than ten, then the benefits payable for each sixteen cents monthly


M iri-nie Greene

premium shall be in accordance with the following table if death occur after the policy has been in force for the periods shown: Age (Nearest birthday) when Issued Under

I

2

3 4 5 6 7 8 9

1Yr. $23 53 78 103 II8 133 143 153 163

1Yr. 2Yr. 3Yr. 4Yr. 5Yr. 6Yr. 7Yr. $53 $78 $103 $125 $145 $175 $190 78 103 125 145 160 185 103 125 140 155 170

l 25 l40 I 55 I 70 135 150 165 150 I 65 160

When the amount of insurance according to the terms of the above table reaches the highest sum stated for an age, it will continue at that amount during the life-time of the Insured. subject to the terms of this policy.

Special Privileges and Concessions to Policy Holders

PRIVILEGES-The insured may reside anywhere, travel anywhere ;.nd engage in any legal occupation whatever without permit from the Association and without affecting his or her right hereunder. The insured may at any time change the beneficiary hereunder by designating the substituted beneficiary upon the Association's form for change of beneficiary, and filing the same at the Association's Home Office, and having the name of the substituted beneficiary entered as such upon the books of the Association.

ACCIDENT CONCESSIONS-If while the Policy is in full force and effect and while NO PREMIUM IS DUE AND UNPAID, the insured shall lose by the severance of both hands, or both feet, or one hand and cne foot, or lose permanently the sight of both eyes, total and permanent disability shall be deemed to exist, and the amount of insurance then payable in the event of death shall be paid immediately upon receipt by the Associa-


M iti-nie Greene

tion of due proof of such loss and the surrender of this Policy. If while the Policy is in full force and while NO premium is due and unpaid, the insured shall lose by the severance of one hand, or one foot, or lose permanently the sight of one eye, partial disability shall be deemed to exist, and one-fourth of the insurance then payable in the event of death shall be paid immediately upon receipt by the Association of due proof of such loss and the surrend~r of this Policy.

INCONTESTABILITY-This Policy shall be incontestable after it has been in force, during the lifetime of the Insured, for a period of one year from the date of its issue, except for nonpayment of premiums, fraud or misstatement of age.

The directors and officials of the Association shall be elected at Io o'clock A. M., Eastern Standard Time, on the second Wednesday of November of each odd numbered year at the office of the Association in Bristol, Virginia, and no further notice is to be mailed to the mem hers.

A Stated Annual Meeting of the members of this Association shall be held at Io o'clock A. M., Eastern Standard Time, on the second Wednesday of November of each year at the office of the Association in Bristol, Virginia, and no further notice is to be mailed to the members. No proxy of an assured shall continue in effect for more than one year after the date on which such proxy was signed by the assured.

OPTION TO SURRENDER WITHIN ONE WEEK -If the terms of this policy are not satisfactory or if the conditions are not accepted and agreed to, the Policy may be surrendered for cancellation at the office of the Manager of the District through which this policy is issued within one week from the date hereof; and if so surrendered within said period, the premiums paid thereon will be returned.

MODES OF SETTLEMENT

The Insured (or the beneficiary after the Insured's death in case the Insured shall have made no election) may, by written notice to the Association at its Home Office, elect to have the net


Mirmie Greene

sum due under this policy upon the death of the Insured, either paid in Cash; or,

OPTION 1. Paid in fixed monthly installments.

OPTION 2. Fifty per cent Cash and the balance paid in equal monthly installments over a period of twelve months.

INSTRUCTIONS TO BANK

No. 4 See that Certified Copy of Physician's Statement No. 1 is completed and acknowledged before Notary.

No. 5 See that Certified Copy of Mortician's Statement No. 2 is completed and acknowledged before Notary.

No. 6 See that Certified Copy of Death Certificate is attached.

No. 7 The last official premium receipt must be attached showing date on which premium payment has been received by the Association on this poli~y beyond the date of the death of insured: otherwise the draft is not valid.

No. 8 The draft is not valid if detached from Policy or if paid to any other person than the person last named as beneficiary on the face of this policy, or during the Contestable period as provided in this Policy. Wire Association for advice.

No. 9 In no event can draft be in an amount greater than Three Hundred ($300.00) Dollars.

READ POLICY CAREFULLY. SOUTHWESTERN VOLUNTARY

ASSOCIATION, Inc. BRISTOL, VIRGINIA SPOT CASH POLICY

$300.00 FOR Accidental Death OR $300.00 FOR

Natural Death

Q. 5 This policy reads there ''Minnie Green, wife page 64 ] of Robert Clayton Green." Will you tell the court


M iTinie Greene

in your own words why that appears there as Minnie Green, his wife? ·

A. Well, when he taken the insurance out, he said, "How do you want this made?" ~nd he said, "We expect to get married." And he says, "Well, I'll make it over to her to keep from the trouble of changing it again." He told him we was expecting to get married-he told him that, and he said that would be all right, and to keep from the trouble of changing it he would fix it that way.

Q. 6 And Robert Clayton Green told this agent that you all were not married?

By Mr. Jones: We object to the question.

Q. 7 State whether or not Robert Clayton Green, who is now dead. told the insurance agent that you all were not man and wife?

A. Yes, sir. . Q. 8 Now where did this happen? Where did this con-

versation happen? A. On King Street, 1 1 2 King. Q. 9 Where? A. In the front room. Q. 1 o In what town? A. Bristol, Virginia.

Q. 11 Now who was there and heard this converpage 65 ] sation?

A. Jumbo Lyons and Jo Ella Thomas. Q. 1 2 Go ahead. A. And Robert and myself. Q. 13 Have you seen this agent this morning that you say

sold you the policy? A. Yes, sir. Q. 1 4 Where did you see him this morning? A. When he come in. Q. 15 Was he with Mr. Willis over there-tliat man over

there-was he with him? A. No, sir, he was by himself. Q. 1 6 Did Robert pay the premium on this policy?

Minnie (;::ireen vs. Southwestern Voluntary Asso., Inc. 5 7

M irmie Greene

A. Yes, sir. Q. 17 Now, Minnie, where is Robert now? A. He is dead. Q. 18 What relationship did you have, or were you con~

nected with Bob in any way when he died? A. No, sir, I wasn't related to him. Q. 1 9 You weren't related to him? A. No, sir. Q. 20 Had you made any contract, or did you have any

arrangement about getting married? A. Yes, sir.

Q. 21 When did that come about? When did you page 66 ] all make this arrangement?

A. Well. it was before he taken out the insurance. Q. 2 2 Where did Bob live? A. I I 2 King Street. Q. 2 3 Who else lived there? A. Jo Ella Thomas and Jumbo Lyons. Q. 24 Who rented that house? A. Robert Green. Q. 25 The dead man? A. Yes, sir. Q. 26 What rent did you pay? A. $ r .-50 a week. Q. 27 What did Jumbo Lyons pay? A. The same. Q. 28 And Joe Ella Thomas? A. The same. Q. 29 Now what were you doing for a living at the time

this policy was taken out? A. Washing and ironing. Q. 3 o Where were you doing that? A. Out at my home. Q. 3 1 You mean where you roomed? A. Yes, sir.

Q. 32 Did you do anything else after that? Did page 67 ] you continue to wash and iron?

A. No, sir. Q. 3 3 What did you do?

A. Q. A. Q A. Q. A. Q.

Supreme Court· of Appeals of Virginia

MiTinie Greene

Worked down in the cafe. 34 In the cafe? Yes, sir.

3 5 You mean the restaurant? Yes, sir.

3 6 Whose restaurant was it? Robert Green's.

3 7 How long had he had the restaurant? About how long?

it?

A. Q. A. Q. A. Q.

I couldn't say. 38 Who did he get it from? Miss Addie Hensley.

39 Do you know what he paid for the restaurant? For the stuff that was in it $25.00.

40 Do you know where he got the money to pay for

A. He got some from me. Q. 41 He got some of it from you. How much did he

get from you? A. $10.00.

Q. 42 You say you went down there to work. How come you to go there to work?

A. I went down there because we was engaged to page 6 8 ] get married and I thought we could s~e money to

gether. Q. 4 3 After you went down there to work for your to

be husband, did you pay rent after that? A. No, sir. Q. 44 Where had you eaten prior to that, when Bob

bought the restaurant? A. I was eating at the restaurant when Miss Addie had it. Q. 45 And rooming at 112 King Street? A. Yes, sir. Q. 46 What were you doing at that time for a living? A. Washing and ironing. Q. 4 7 But later Bob bought the restaurant and you went

down there to work? A. Yes, sir. Q. 48 Did Bob ask you to go down there to work?


M iunie Greene

A. Yes. Q. 49 What did you do when you were there at the res

taurant? A. I cooked. Q. 5 o After you went down there to work and quit your

own business of washing and ironing, how did you make a living? Did he pay you a salary at the restaurant?

A. No, sir. page 69 ] Q. 51 Did you get your board?

A. Yes, sir. Q. 5 2 Did you pay any room rent after that? A. No, sir. Q. 53 Was that given to you because you worked there? A. No, sir, because we were going to be married. Q. 54 Did Bob ever buy anything for you after you were

engaged to be married? A. Yes, sir. Q. 55 What? A. He bought this coat, and dresses and shoes. Q. 56 He bought the coat you have on your back? A. Yes, sir. Q. 5 7 Did he buy you any dresses? A. Yes, sir, and this hat. Q. 58 Did he buy you the hat you have on? A. Yes, sir. Q. 5 9 What kind of dresses did Bob buy for you? A. He bought me one green dress trimmed in white, and

bought me a blouse and skirt, and a pair of black shoes and a pair of tan shoes.

Q. 60 All of this was after Bob promised to marry you? A. Yes, sir.

Q. 61 Did he give you anything in your room or page 70 J household?

A. Give me a bedroom suite. Q. 62 He had bought you certain clothes? A. Yes. Q. 63 Who paid for them? A. He did. Q. 64 Bob paid for them?


Mi r.,nie Greene

A. Yes, sir. Q. 65Bob is not living now, is he? A. No, sir. Q. 66 Where did Bob die? A. 112 King Street. Q. 6 7 Where were you at that time? A. Down at the cafe. Q. 68 Now, Minnie, I don't know whether I have ask

ed you or not, but why did you quit your washing and ironling to go to work for Bob at the cafe without a salary?

A. Because we were going to be married. Q. 69 Did anybody else know that you were going to be

married? A. Yes, sir. Q. 70 Who knew it? A. Jumbo Lyons and Jo Ella Thomas, and Mr. Willie

Brown and several others. Q. 7 1 Did the insurance man know it?

page 7 1 ] A. Yes, sir, we told him. Q. 7 2 He was told that at the time he wrote the

policy? A. Yes, sir, Bob told him. Q. 73 Now, Minnie, after your to-be husband died, djd

you make demand that this insurance company or burial association pay this policy or this claim? Did you ask them for it?

A. Yes, sir. Q. 74 Where did you go to ask for it? A. Went out to the Southern Railway Shops. Q. 75 Why did you go out to the Southern Railway

shops? A. That is where the man works, the. head man. Q. 76 Is that the man over there? Does that look like the

man you went to see, or do you know? A. I don't know, I didn't see him but once. Q. 77 Who went with you out there? A. Mr. Willie Brown. Q. 78 Why did you take Willie Brown with you out

there? A. He knew where it was and I didn't.

Minnie Green vs. Southwestern Voluntary Asso., Inc. 6 I

Mirmie Greene

Q. 79 Is he the undertaker? A. Yes, sir. Q. Bo Did he bury Bob? A. Yes, sir.

Q. 8 1 You took Willie Brown with you? page 72 ] A. Yes, sir.

Q. 82 How long was that after Bob died? A. I just couldn't think-wasn't very long. Q. 83 Pretty soon after he died? A. Yes, sir. Q. 84 Was Willie Brown, the undertaker, wanting his

money? A. No, sir, he didn't bother me about that. Q. 8 5 Have you paid Willie Brown the undertaking bill? A. Not all of it. Q. 8 6 Have you paid part of it? A. Yes, sir. Q. 87 What other debts of Bob have you paid, if any? A. A furniture bill and for some medicine. Q. 8 8 Minnie, did you know there was anything wrong

in this insurance agent putting your name in there as Minnie Green, his wife, when in fact you weren't?

A. Did I know anything was wrong? Q. 89 Did you know that was against the law or any

thing when he put your name in as wife when you really weren't?

A. I knew it was wrong. Q. 90 Did you tell him so, or did Bob tell him that

wasn't right, that your weren't his wife? A. Yes, sir.

Q. 9 1 What did Mr. Willis, or the man at the page 73 ] Southern Railway Shops, say when you went to get

your money? A. He said I had to be some relative, or his lawfully mar

ried wife. He wanted a marriage certificate and a death certificate.

Q. 92 Minnie, what did you make? What was your weekly income while you were washing and ironing?

A. Sometimes $3.00 and $3.50.


Miri-nie Greene

Q. 9 3 For washing and ironing? A. Yes, sir. Q. 94 When you went to the restaurant to work did you

get any fixed amount of money each week? A. No, sir. Q. 95 What did you get while you worked there? A. I got money when I needed it to pay my insurance and

different bills. Q. 96 You got money when you needed it. Who did you

get it from? A. Robert. Q. 9 7 You mean Robert Green, the dead man? A. Yes, sir. Q. 9 8 He took care of your necessities down there? A. Yes, sir. Q. 9 9 Now it has been said here this morning by oppos

ing counsel you were living with Bob Green. Were page 74 ] you living with Bob Green as man and wife?

A. No, sir.

CROSS EXAMINAT1

ION

By Mr. Jones: X. 1 You say your name is Minnie Green? A. No, sir. X. 2 You are also known as Minnie Banks, aren't you? A. Minnie Donald. X. 3 Aren't you also known as Minnie Banks? A. · Y e·s; sir~~ - --X. 4 You are known as Minnie Banks. That is the way

you are generally known in Bristol, as Minnie Banks? A. Yes, sir. X. 5 You filed your pleading here this morning saying

your name is Minnie Donald. A. That is my father's name. My mother is married

again. She was a Banks. X. 6 Now which is your name, Minnie Donald, Banks

or Green? A. My name is Minnie Donald.


M irmie Greene

X. 7 But you are generally known as Minnie Banks? A. Yes, sir. X. 8 On this occasion you were living at the same place

that Green was living, is that right? page 75 ] Yes, sir.

X. 9 Did you have any relative living there at all? A. My daughter. X. 1 o Your ~aughter was living there. Where are you

living now? A. I live on Scyamore Street now. X. 1 1 How did this man Green die? A. He got killed. X. 1 2 He was killed? A. Yes, sir. X. 1 3 I believe you said you were there at the time? A. Was where? X. 14 There at the place where he was killed? A. No, sir, I wasn't. X. 15 I understood you to say he was killed at 112 King

Street, didn't you? A. He was, but I wasn't there. X. 16 The police don't know yet who killed him? A. No, sir. X. 17 There wasn't anything to keep you all from get

ting married, was there? A. There wasn't anything? X. 18 Yes, you say you were engaged when this insur

ance was taken out and were going to be married in -~~ page 76---]-tl1~jutul'~?

A. Ye-s, sir.-~ -------X. 19 There wasn't anything to keep you from being

married at that t_ime, was there? A. We didn't have enough money. X. 20 What do you mean J:,y not having enough money?

You had as much money then as when he died, didn't you? A. No. X. 2 1 Where did he buy this furniture you speak of? A. United Furniture Store.

it?


M irinie Greene

X. 22 Do you have the papers under which he bought

A. Yes, sir, they are at home. X. 23 You didn't bring them with you? A. No, sir. X. 24 You have been making payments on that, haven't

you? A. The bedroom suite down there? Yes, sir. X. 25 Where did he buy this coat tliat you speak of? A. He bought it down on State Street-I don't know

just what store. X. 26 What place? A. I couldn't say just what store. X. 2 7 Now when this policy was applied for Green

wasn't at work, was he? A. No, sir.

page 77 ] X. 28 He was out of a job, is that right? A. Yes, sir. He had been cooking-had been

working. X. 29 How long had he been out of a job? A. He had been out of town, hadn't been there. He had

been away from town about nine months before then. X. 3 o How long before this policy was taken out was it

he came back? A. How long before? X. 3 1 How long had he been in town when he took the

policy out? A. I don't just remember. X. 32 About how long? A. I don't know.

_-~-~~~·- ~~x. 33~Kweekortwo·weeks, a month, a year or five years?

A. Been longer than two weeks, but I don't know just how long.

X. 3 4 Did you know him before he came back to town? A. I knowed of him. X. 35 But you didn't know him until he came back? A. I knowed him before I said.

Minnie Green vs. Southwestern Voluntary Assa., Inc. 65

Mir.,·nie Greene

X. 3 6 You did know him before? How long had you known him?

A. I don't know just how long. X. 37 Where was he while away?

page 7 8 ] A. Petros. X. 38 Where is that, in what state?

A. Tennessee. X. 39 You say he was down there how long? A. About nine months. X. 40 Were you engaged to him before he went down

there? A. No, sir. X. 41 You were engaged to him when he came back? A. Got engaged after he came back. X. 42 How long after he came back was it that you and

he got engaged? A. I couldn't say. X. 43 About how long? A. I don't know. X. 44 Had he been back about two weeks before the pol-

icy was taken out? A. Longer than that. X. 45 How long-how much longer? A. I don't know how long. X. 46 Could you give us some idea? A. I don't know. X. 47 Was it six months? A. No, he wasn't back that long.

X. 48 When he came back he lived there at the page 79 ] same place you lived, didn't he?

A. Yes, sir. X. 49 He lived there all the time after he came back? A. That was his house. X. 50 He lived there all the time when he came back? A. Yes. X. 5 I You don't know how long he had been there? A. How long he had been back from Petros? X. 52 Yes, back from down in Tennessee? A. No, I don't.


Mirinie Greene

X. 5 3 You can't give me any idea whether it was one month, six months, or a year?

A. I couldn't say to be sure. X. 5 4 About how long was he there before this policy

was taken out? A. If I would guess-I wouldn't say I knowed how long. X. 5 5 We are not saying you know. Just guess at it the

best you can.

By Mr. Scyphers: If your Honor please, I object on the theory she says she

doesn't know and it would be a mere guess.

By the Court: · Overrule the objection.

X. 5 6 Did he come back before or after Christpage 80 ] mas of last year?

A. He came back before Christmas. X. 5 7 Before Christmas of last year. How much before

Christmas? Did he come back before Thanksgiving of last year?

A. He came back in October. X. 58 Well then you did know when he was here? A. Best I can get at it, it was October-I am not sure. X. 5 9 When did you tell your attorney your name was

Minnie Donald-When did you tell Mr. Scyphers your name was Minnie Donald?

A. When I went to see him. X. 60 When you went to see him and talked to him you

told tim your name was Minnie Donald. Is that right? A. Yes, sir. X. 6 1 Did you know he had brought your suit here in

the name of Minnie Green? A. Yes, sir. X. 62 You are sure you told him that before, or did you

you tell him afterwards? A. Before when? X. 63 Before he brought the suit or afterwards? A. I told him before.


M irmie Greene

X. 64 Now Green could read, couldn't he? A. Yes, sir.

page 81 ] X. 65 He could write too, couldn't he?

you?

A. Yes, sir. X. 66 You know his signature when you see it, don't

A. Yes, sir. X. 67 Is that his signature? (Indicating on paper). A. Yes, sir, that is his signature. X. 68 Now then when he came back from Tennessee,

did he get any job in Bristol, or was he out of a job from th'·e time he came back?

A. He got the restaurant-he had a little money when he came back and we went in together and bought the restaurant.

X. 69 He bought the restaurant after the insurance was taken out didn't he?

A. I don't remember. X. 70 You never knew him having a job from the time

he came back to Bristol until he was killed working in his own restaurant, did you?

A. He worked around house cleaning. X. 71 He worked at odd jobs he could find around Bris

tol? A. Yes, sir. X. 72 When did he buy the restaurant? Was that before

or after the insurance was taken out? A. I don't remember.

X. 73 You say you were engaged before the inpage 8 2 ] surance was taken out?

A. Yes, sir. X. 7 4 When were you engaged? A. I Just don't remember. X. 75 You don't remember? You don't know what

day or what month it was, or what year it was? · A. \Vhat year it was?

X. 76 Was it this year or last year? A. It was this year. X. 77 What time this year? A. I don't know the date.


M iri-nie Greene

X. 7 8 Was it before or after Washington's Birthday-February 22nd?

A. I don't know. X. 79 You have no recollection of the date at all? A. No, sir. X. Bo Was it at the time he bought the· restaurant, or

after you went into the restaurant? A. When we was engaged? X. 81 Yes? A. Before we went into the restaurant. X. 82 When was that? Can you remember it that way?· A. No, I can't remember.

X. 83 You can't give any idea at all of the date page 83 ] on which you and he were engaged?

A. No, I don't know that. X. 84 You say these other folks knew about it? A. Yes, sir. X. 8 5 When did you tell them? A. He told that boy and I told the girls myself. X. 86 You told your daughter yourself. When did you

tell her? A. I don't know just the time. X. 87 You haven't got any letters er anything in writ-

ing at all that would fix that date, have you? A. No, I haven't. X. 88 But you say you were engaged to him? A. Yes, sir. X. 89 Did you have any ring given to you by him, or

anything to show your engagement? A. He gave me a silver set. X. 90 Have you got any date about that, or any bill of

sale to show the date on which he gave you that? A. No, sir, I don't have the time. X. 91 You say while you lived there you paid $ 1.50 a

week for a room? A. Yes, sir.

X. 92 You were paying that at the time this polpage 84 ] icy was issued, weren't you?

A. I don't know.


M ir.mie Greene

X. 93 You certainly paid it when you started living there, didn't you? You were paying that when he came back?

A. I didn't pay any after we was engaged. X. 94 Weren't you paying $1.50 a week at the time this

policy was issued? A. I don't know. X. 95 You don't know for sure whether you were en-

gaged at that time, do you? A. Yes, sir, I rem em her that. X. 96 What makes you remember that? A. I know it. I remember that, but I don't remember

the date. X. 97 But you remember that? A. Yes. X. 98 You are sure you were engaged to him then? A. Sure. X. 99 But you haven't any idea at all on what date you

were engaged to him? A. I know when we was supposed to get married, but I

don't know when we got engaged. I don't remember the date. X. 1 oo Now as a matter of fact you furnished money to

Green, didn't you? page 8 5 ] A. Furnished money to him?

X. 101 Yes? A. For what? X. 1 02 You furnished the money for him to buy the

restaurant, didn't you? A. He had part of it and I gave him my part of it. We

went in it together. X. 103 That is money that you saved up from washing

and ironing? A. Yes, and money my daughter gave me too. X. 104 What money had Green given you? Had he ever

given you any money? . A. After we was ·engaged he did. X. 1 o 5 Were you raised in Bristol? A. No, sir. X. 106 Where were you raised?


Mir,.nie Greene

A. My home is in Cleveland. I was raised part in Cleve-land and part in Memphis, Tennessee.

X. 1 o 7 Cleveland, Tennessee? A. Ohio. X. 1 o 8 Where was Green raised? A. He was born in Ohio, Cleveland, Ohio, he said. X. 1 09 Did you know him up there?

A. No, sir. page 8 6 ] X. 1 1 o You only met him in Bristol?

Yes, sir. X. 1 1 1 When did you get to Bristol? A. I don't know the date, but I have been in Bristol right

along-I guess about ten or fifteen years off and on. X. I I 2 You said somebody else was present there when

the insurance solicitor was there? A. Yes, sir. X. I I 3 Who did you say was there? A. Jo Ella Thomas and Jun:ibo Lyons. X. 114 Anybody else? A. No, sir, but the man that wrote the insurance. X. 1 1 5 And yourself? A. Yes, sir, and Robert. X. 116 That is Robert Green you speak of? A. Yes, sir. X. 1 1 7 Did they hear that conversation, these other peo

ple, about you being engaged? A. I don't know whether they heard it then, but he told

this boy afterwards. X. 1 1 8 Did these people hear him tell the insurance man? A. Yes, sir. X. 1 1 9 They did hear that?

A. Yes, sir. page 8 7 ] X. 1 20 You are sure of that?

A. Yes, sir. X. 121 You have been talking to them about it, haven't

you? A. X.

Lyons?

Talking about it? 122 To these witnesses, Jo Ella Thomas and Jumbo


Mi~·nie Greene

A. I didnt know that Jumbo knew anything about it. I didn't know he knew we was engaged.

X. 123 But you did know Jumbo heard that conversa-tion where the insurance agent was told you were engaged.

A. He was there. X. 124 Did he hear that conversation? A. I guess he did. I didn't ask him if he heard it. He was

there. X. 125 You have asked him since if he heard it? A. Asked him since then? X. 126 Yes, haven't you talked to Jumbo Lyons about

that conversation, ·whether or not he heard the insurance agent told that you all were engaged?

A. No, sir, I haven't asked him that. X. 127 You haven't mentioned it to him at all Have

you talked to Jo Ella Thomas about that? A. About we was engaged?

X. 128 No, about that conversation with the inpage 88 ] surance agent, have you talked to her about that?

A. No, sir, I haven't talked to her about it. X. 1 29 But you had them brought here as witnesses? A. Sure. They were there. X. 130 Where do they live now? They live in Bristol? A. Yes, sir, they live in Bristol. X. 13 r And in all this period of time that you have

brought this lawsuit, you haven't talked to them? A. No. X. 13 2 You haven't talked to them at all? A. I have talked to them, but I haven't said anything

abo1nt this. X. 133 You haven't talked to them about your suit? A. No, sir. X. 1 34 You haven't talked about that conversation with

the insurance agent, when the insurance agent was there, and what they knew about it - you haven't even talked to them.1 about that conversation?

A. No, sir.


Mir..-nie Greene

RE-DIRECT EXAMINATION

By Mr. Scyphers: Q. 1 When you went out to the railroad shops to see Mr.

Willis, the insurance man who works out there, who went with you?

page 98 ] A. Mr. Willie Brown. Q. 2 Had you talked to me at that time? Had you

hired me to represent you? A. No, sir. Q. 3 You hadn't hired any lawyer to represent you at

that time? A. No, sir. Q. 4 What did you tell Mr. Willis out there? A. What did I tell him? Q. 5 Yes?

By Mr. Jones: I don't know what he is going into but I think we would

object to that because it would be a self-serving declaration.

By Mr. Scyphers: I want to know what the conversation was between them

out there.

By the Court: The conversation with Mr. Willis?

By Mr. Scyphers: A. Yes, sir.

By the Court: Overruled.

By Mr. Jones: Exception.

Q. 6 Go ahead and tell what the conversation was between you and Willie Brown, the undertaker, and Mr. Willis at the railroad shops.

A. I went out there and I told him I was Minnie and I wanted to know if they would pay this insurance.

page 90 ] He said, "Are you his wife?" I said, "No, we was

Minnie Green vs. Southwestern Voluntary Assa., Inc. 73

Minnie Greene

engaged. I am not his wife." He said unless you are related or lawfully married," he said he couldn't pay it. I said, "I don't care whether I get anythin:g out of it, just so I can pay his hurrying expenses and his bills."

RE-CROSS EXAMINATION

By Mr. Jones: X. 1 How much were his burial expenses? A. Mr. Brown knows, I just don't remember. X. 2 Mr. Brown is the one that went out there with

you? A. He taken me out there, because I didn't know where

1t was. X. 3 And Mr. Brown is the one that came with you to

my office? A. Yes, sir. X. 4 And Mr. Brown is the one that went with you to

Mr. Scyphers office? A. No, sir, he didn't go with me there.

By Mr. Scyphers: Mr. Brown wanted his burial money didn't he?

By the Witness: Sure. I guess he did.

By Mr. Scyphers: The balance of it?

By the Witness: A. Yes, sir.

X. 5 Have you turned this policy over to Brown page 9 1 ] to collect?

A. No, sir. X. 6 If you collect anything on this policy does it go to

Mr. Brown-if you get anything on this policy does it go to Brown?

A. That is what I want with it. X. 7 It goes to him?

•


Willie Brown

A. I have got to pay him and I haven't anything to pay him with.

Witness stood aside.

WILLIE BROWN, the next witness, called by and on behalf of the Plaintiff, being first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

By Mr. S<:yphers: Q. r You are Willie Brown. A. Yes, sir. Q. 2 What is your business? A. Undertaker. Q. 3 Where do you operate? A. 3 1 o Lee Street, Bristol, Virginia. Q. 4 By reason of your establishment as an undertaker

did you bury Robert Clayton Green, colored? page 9 2 ] A. Yes, sir.

Q. 5 Do 1you know what his burial expenses were?

A. Yes, sir. Q. 6 Tell the court and jury. A. It is a little over $300. I don't remember just the

odd dollars. I could have brought the bill. Q. 7 Has anybody paid any on that? A. She has paid a part of it. Q. 8 Who is she? A. Minnie Green. Q. 9 Now have you required Minnie Green to assign

this policy to you, or anything? A. No, sir. Q. 1 o You of course, would like to get your money? A. I certain} y would. Q. 1 1 Willie, did you go with Minnie Green, or Minnie

Donald, out to the Southern Railway shops after Bob's death? A. Yes, sir, I went out there with her, but I don't re

member just how many days it was.


Willie Brown

Q. 12 Was it immediately after his death? A. It was after a reasonable time for them to pay the

claim. Q. 1 3 You went out there with her. When you went

out there with her who did you see? page 93 ] A. Went out there to see Mr. Willis.

Q. 14 Who is Mr. Willis? A. He is secretary and treasurer, I think, of the South-

western V 0111:ntary Association. Q. 15 This insurance association? A. Yes, sir. Q. 16 What conversation: took place between Minnie

Green, yourself, and Mr. Willis? A. We went out there to see him about the claim. She

had had the death proofs filed out and he said under the conditions of the policy, not being his legal wife, and the insurance rules, they could not pay the money to her, and he referred her to Mr. Jones.

Q. I 7 That is their lawyer? A. Yes, sir. Q. 1 8 Did she tell him she had been engaged to be mar

ried to Bob, but wasn't married?

By Mr. Jones: We object to the question because leading and self serving.

Q. 19 State whether or not she said that.

By Mr. Jones: That is still leading.

Q. 20 Tell what other conversation, if any, was had.

By Mr. Jones: Of course, after suggesting to the witness what he should

say, of course the witness knows.

page 94 ] By the Court: Overruled.

By Mr. Jones: Exception.


Willie Brown

A. She talked to Mr. Willis there and she went on to tell him about that they were to be married, and that one of the agents of the Southwestern Association that wrote the policy, that she explained the matter to him when he wrote the policy--

Q. 21 What did she explain? A. That they were going to marry, they were expecting

to marry, and he told her it would be all right to make the policy to her as wife. I said at the time he sho~ld have made the policy to a fiancee and that would have led up to it.

Q. 22 I believe you sell insurance too? A. Yes, sir. Q. 2 3 And you are familiar with these things? A. Yes, sir. Q. 24 You sell colored insurance? A. Yes, sir. Q. 25 Now, Willie. do you know whether or not just

before Bob's death that Minnie ever worked in the restaurant down there?

A. Yes, sir, they bought Miss Addie Hensley's place out down there on 429 Sycamore Street, and they ran a restaurant

down there. page 95 ] Q. 26 And Minnie worked there for Bob?

A. I don't know who she worked for. I know she was in there and done the cooking and buying and serving of meals there.

CROSS EXAMINATION

By· Mr. Jones: X. 1 You knew you would be here as a witness today? A. Yes, sir, I was called yesterday. X. 2 And that you would be asked the amount of your

bill for the funeral? A. l never thought about that at the time. X. What did you think you were coming up here for? A. Well, I though I was coming here as a witness in the

tase. Of course, I didn't know what questions they were going to ask.

Minnie Green vs. Southwestern Voluntary.Asso., Inc. 77

Willie Brown

X.4 What could they ask you about except the amount of the bill, and whether this policy had been assigned to you?

A. They could ask me a lot of questions besides the amount of the bill.

X. 5 You have been in court a good many times as a witness haven't you?

A. Yes. X. 6 You knew if you were going to prove the ~mount

of your bill you should bring it with you? page 96 ] A. Yes, sir.

X. 7 But you didn't bring it? A. No, sir, I didn't bring it. X. 8 You didn't ask them what they were going to ask

you? A. No, sir. I didn't ask them. It wasn't my business.

I was summoned over the telephone. X. 9 You are sure the amount of the bill was over $300? A. Yes, sir. X. 1 o And that the bill owing you is more than $3 oo? A. No, sir, l didn't say that. X. 1 1 Do you think that is true? A. I know it is not true, that she owes me over $3 oo. X. 12 She owes you less than $300? A. Yes, sir, because I told you she had paid some a while

ago. X. I 3 I understand, but you didn't say how much over

$300 it was, or how much had been paid. It is a matter of figuring out how much she does owe you. How much does she owe?

A. I couldn't tell you the exact amount because I don't have my books here with me and I wouldn't say because I might give you the wrong statement.

X. 14 You say if they had made this policy payable as fiancee that would have been all right?

page 97 ] Yes, sir. X. 15 That is what you told them?

A. No, I didn't tell her. I said that conversation was with Mr. Willis.

X. 1 6 She was there with you?


Willie Brown

A. We was there talking. X. I 7 Your idea is if it had said fiancee that it would

have made her related by blood or marriage, or made her a dependent?

By Mr. Scyphers: I object to that.

A. No, I say under the law if the policy was made fiancee the company would be due to pay her.

X. I 8 That is your interpretation of it? _ A. I know that is what insurance companies have done. X. 19 Do you know whether that comes under Chapter

I 69 of the Code? A. I don't know what chapter, but it is the law. I write

policies that way and the policies are paid. X. 20 The insurance companies you write for are not

mutual associations like this? A. I don't know what law your policy comes under. I

know it comes under the insurance rules-you are supposed to be under the Insurance Commission of Virginia.

X. 21 Yours are stock companies, aren't they, page 98 ] that you write policies for?

A. Old line legal reserve insurance. And since Mr. Jones has brought this up, the conversation I had in his office with him-

By Mr. Scyphers: Tell that too.

By Mr. Jones: It looks like the witness thinks he can tell anything under

the sun. We object to it.

By the Court: I sustain that objection. Don't tell anything about what

happened in Mr. Jones' office.

By Mr. Scyphers: Would you hear me just a second?

By the Court: I will say this, that when a witness is asked a question he


Willie Brown

should answer it, unless there is an objection to it, and he shouldn't say anything more than to answer the question.

By the Witness: I stated--

By Mr. Scyphers: Would your Honor hear me just a minute?

By the Court: Gentlemen, go to your room.

NOTE: The jury retired from the court r,oom and the following proceedings were had in their absence:

By Mr. Scyphers: If your honor please, I don't know just what the conver

sation may have been, but if Willie Brown and Minnie Green were in Mr. Jones' office discussing this case with

page 99 ] Mr. Jones as their attorney, he acted in Willis' stead, or the corporation's stead. The corpora

tion doesn't breathe and have life like an individual--

By the Court: Just a minute, Mr. Scyphers. The witness was talking

about a conversation between the plaintiff here and Mr. Willis. Mr. Jones cross examined him some on that conversation. Then a good deal of conversation, or questions _and answers, passed between Mr. Jones and the witness as to what the law of Virginia 1s. I don't want any more of that. No witness can tell the jury what the law is.

Now on that cross examination of Mr. Jones, because of the voluntary statement of the witness you want to go into what happened in Mr. Jones' office.

By Mr. Jones: I didn't ask Willis Brown what the law was.

By the Court: I know that, but it had already gone too far. Now you are trying to get into a conversation that hadn't

been mentioned until the witness mentioned it himself. I sustain the objection. I don't want the conversation between Mr.

Bo Supreme Court of Appeals of Virginia

Willie Brown

Jones and the witness at the time. Of course, if you want to dothat-

By Mr. Scyphers: page I oo ] That is what we will proceed to go into that.

By the Court: We won't do that now. If you want to take the witness

later and re-examine .him, you may.

By Mr. Scyphers: I don't want to do what the court don't want. I want

to ask this question. I meant to ask this ques~ion and if it is illegal, I won't ask it. I meant to ask him this question and I will ask your Honor to rule on it now: Willie, did you have a conversation in the presence of Minnie Green, with Mr. Jones, the defendant's lawyer, as to why the insurance company wouldn't pay this claim?

By the Witness: Yes, sir, as I stated-

By the Court: Wait a minute. Do you object, Mr. Jones?

B'y Mr. Jones: Yes, I will object to that question.

By Mr. Scyphers: On what grounds, Mr. Jones? If you made any statement

against the interest of the company, if it was not in an effort to compromise I don't see why it wouldn't be admissable.

By the Court: Mr. Jones is the attorney for the company, isn't he?

By Mr. Scyphers: Yes, and he is their agent and acting for them,

page Io 1 ] and if he made an admission--

By the Court: He is objecting, but go ahead and answer the question.

By the Witness: I went-as I remember I stated awhile ago, I went at the

Minnie Green vs. Southwestern Voluntary Asso., Inc. 8 r

Jumbo Lyons

suggestion of Mr. Willis when at his place, that he referred us to Mr. Jones as the attorney, and we went to Mr. Jones' office and brought the matter up, and Mr. Jones went through some of the same thing, that it could not be paid to her because she was not a blood relative, and that she wasn't his wife. I asked him the question could it be paid to an administrator, and he said no, that it couldn't be paid to an administrator, that their company rules didn't allow it to be paid to an administrator. Then he said that the premiums could be returned to her. I said, "well, if you can't pay the death benefits to her I don't see how you can pay the death benefits to her. If one is illegal the other would be illegal." That is the conversation I had with Mr. Jones.

By the Court: I sustain the objection.

By Mr. Scyphers: I except to the Court's ruling.

Witness stood aside.,

NOTE: The jury returned into the court room and the following proceedings were had in their presence:

page 102 ] JUMBO LYONS, the next witness, called by and on behalf of the Plaintiff, being first duly sworn,

was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Scyphers: Q. 1 Please state your name. A. Bever! y Lyons. Q. 2 Are you better known as Jumbo? A. Yes, sir. Q. 3 Where do you live? A. 429 Sycamore Street. Q. 4 Do you know Minnie Green or Minnie Donald? A. Yes, sir.


Jumbo Lyons

Q. 5 Did you know Robert Clayton Green, now deceased?

A. Yes, sir. Q. 6 Have you ever lived in Bristol at any other place

except 429 Sycamore Street? A. Yes, sir. Q. 7 Where have you lived in Bristol recently other than

429 Sycamore Street? A. 1 1 2 King Street. Q. 8 Who else lived at 112 King Street when you lived

there? A. Robert Green, Minnie Donald and her daughter Jo

Ella. Q. 9 And you?

page 103 ] A. Yes, sir. Q. 1 o Were you living at 1 1 2 King Street m

March, 1941 ? A. Yes, sir. Q. 11 I will ask you if you .were living there, or do you

know anything about a life insurance solicitor or any insurance salesman coming there to see Robert Green along in March of this year?

A. Yes, sir. Q. 1 2 In your own words please tell the court and jury

what you know. A. He came there and asked Robert if he wanted to take

out insurance, and Robert told him he wasn't working right then, and he said, ''Well, it's awful cheap insurance." Robert said, "How much is it?" And he said, "$300 at death," and I think he said it was forty some cents a month he had to pay. Robert told him. "Well, I don't think I want one." And he kept on talking and Robert said, ''I believe I will take one," and Robert took the insurance out.

Q. 13 Who else was there present? A. Minnie Donald, and her daughter was there at the

time and I was there. Q. 14 You and Robert?

A. Yes, sir. page I 04 ] Q. 15 And who else?


Jumbo Lyons

A. Minnie and her daughter. Q. 1 6 What time of day was this, if you remember? A. It was along about three thirty or four o'clock. Q. 17 When? A. In the evening. Q. 18 Well, was anything else said by Robert or Minnie

or any of them? A. Yes, sir. Q. 1 9 What else was said? A. Robert told him-he said, ''Who are you going to

have the insurance made out to?" And he said, 'TU have it made out to Minnie." "Minnie who?" "Minnie B;mksMinnie Donald." And he said, "Is that your name?" And she said yes, ''I'm Minnie Donald." 'Tm engaged to marry Minnie," Robert said. He said, ''I'll put your name down Minnie Green so it won't have to be changed." He asked me if I wanted to take out one, and the insurance came, but I never did pay for it.

Q. 20 Who did you have yours made to? A. To my sister. Q. 2 1 The insurance solicitor knew Minnie was not his

real wife? A. Yes, sir.

Q. 22 That she was only engaged to be married? page 105 ] A. Yes, sir.

Q. 23 Do you have any interest in this caseare you related to any of them?

A. No. sir. Q. 24 Do you know what ;Minnie Green did for a

living prior to when she worked i~ the restaurant, what she did there at the house?

A. Well, she washed and ironed. Q. 25 When ~ob died what was she doing? A. She was working there in the cafe. Q. 26 Who ran that house at r 1 2 King Street? A. Robert Green. Q. 27 Did you pay rent there? A. Yes, sir. Q. 28 What did you pay?


Jumbo Lyons

A. Paid him $ I .50 a week. Q. 29 Did he rent to the other people there too? A. Yes, sir.

CROSS EXAMINATION

By Mr. Jones: Q. 1 How long did you live there? A. I stayed there from the second day of December, I 940,

to about three weeks after Robert died. _ Q. 2 Was ·;Minnie Green living there all the

page 1 o 6 ] time that you were? A. Yes, sir.

X. 3 Was Robert Green there all the time you were there.

A. Yes, sir. X. 4 You have moved to 429 Sycamore Street? A. Yes, sir. X. 5 Is that where Minnie Green lives too? A. Yes, she runs a rooming house there. X. 6 And you have moved over there too? A. Yes, sir. X. 7 This Jo Ella Thomas you speak of, that is the

daughter of Minnie Green, isn't it? A. Yes, sir. X. 8 A minute ago in your testimany you said when the

agent was talking there and asked Robert Green who he wanted the insurance payable to he said Minnie Banks, and then you corrected yourself immediately and said he wanted it payable to Minnie Donald. Just which one of these did Robert Green say?

A. Minnie Donald. X. 9 He said Minnie Donald? A. Yes. X. 1 o She is known generally around Bristol as Minnie

Banks, isn't she? A. No, sir. Some of them calls her that some

page 107 ] times, but I always calls her Minnie Donald. X. 11 You still call her that?


Jumbo Lyons

A. Yes, sir. X. 1 2 You say this was 3: 3 o or 4: oo in the afternoon? A. Yes, sir. X. 1 3 Where do you work? A. Colonial Grill. X. 14 You weren't on duty then? A. I wasn't working there then. X. 1 5 Where were you working? A. Just jobbing around different places. X. 1 6 Where was Robert Green working? A. He wasn't working nowhere. X. 1 7 Where was Minnie Banks working then? A. Taking in laundry, washing and ironing. X. 1 8 She was in there, in this living room? A. Yes, sir. X. 1 Q Where did Jo Ella Thomas work then? A. She worked at the beauty parlor down there at the

General Shelby Hotel. X. 20 But not any of you were working along about

3 :30 or 4:00 o'clock in the afternoon? A. No, sir.


page 108 ] By Mr. Scyphers: Q. 1 Did you ever have a conversation with

Bolr--A. Yes, sir. Q. 2 Just a minute until I finish the question. When

did you first find out Bob and Minnie were going to be married?

A. He told me one day-me and him was up at the house and nobody else was there but me and him, and we was sitting there in thi room, and he said, "Bo, I'm going to get married." I said, "You' re just kidding." He said, "No, I'm not. I am going to marry Easter ,Sunday." It was along about the first of March when he told me that.


Jumbo Lyons


By Mr. Jones: X. 1 About the first of March? A. Yes, sir. X. 2 Before or after the first of March? A. Well, the first of March, along about the first, I be

lieve. May have been about the 2nd of March something like that.

X. A. X.

3 What day of the week was it? I don't remember what day of the week it was.

4 Was it Sunday? A. I don't know.

page 109 ] X. 5 You don't know what day of the week it was.

A. No, sir. X. 6 How do you fix the day as the first of March? A. Well, I know I wasn't doing anything-I was at

home along about the first of March, or· the second one. I know I wasn't doing anything and we were sitting there talking.

X. 7 You have seen this insurance policy haven't you? A. Yes, sir, I seen it when it was brought there. X. 8 You knew it was dated right about that time,

March 3rd. didn't you? A. I didn't know right when it was dated, but I seen the

policy when he brought it there. X. 9 But this engagement you are sure was just before

that? A. Yes, sir. X. 1 o His telling you that was just before the agent sold

the policy. wasn't it? A. Yes, sir. X. 1 1 You are sure of that? A. I know he brought the policy there after Bob told me

he was engaged. X. 1 2 You are sure of that too? A. Yes, sir. X. 13 Have you talked this over with Minnie Banks?


Jo Ella Thomas

A. No, sir. page 1 1 o ] X. 1 4 You haven't discussed th~ case with her

at all? A. No, sir. X. 1 5 Did she summons you here as a witness? A. No, sir. X. 16 She hasn't summoned you as a witness? A.. Mr. Ssyphers did. X. 17 Have you talked to him about the case? A. Yes, sir.

Witnes~ stood aside.

JO ELLA THOMAS, the next witness, called by and on behalf of the Plaintiff, being first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

By Mr. Scyphers: Q. 1 Are you Jo Ella Thomas? A. Yes, sir. Q. 2 I believe you are the daughter of Minnie Donald? A. I am. Q. 3 Where were you living last winter, this past winter,

In I 941? A. 1 1 2 King Street. Q. 4 In what town or city?

A. Bristol, Virginia. page 1 1 1 ] Q. 5 Who else lived there with you at I I 2 King

Street? A. Q. A. Q.

there? A. Q. A.

My Mother, and Jumbo Lyons, and Robert Green. 6 Was that your house? No, sir.

7 Who did you pay rent to, or how did you stay

Paid rent to Robert Green. 8 What did you pay him? $ 1.50 a week.


Jo Ella Thomas

Q. 9 I believe you are working for some beauty parlor in Bristol?

A. Yes, sir. At the Jo-Marie. Q. 1 o Where is it located? A. On Front Street in the General Shelby Hotel. Q. 11 Now, Jo Ella, I show you an insurance policy

and ask you if you have ever seen that policy before? A. Yes, sir. Q. I 2 Tell the court and jury what you know about

that policy? A. Well, I know it was Robert Green's and it was willed

to Minnie. Q. 13 It was Robert Green's and it was willed to

Minnie? A. Yes, sir. Q. 14 That is your mother?

A. Yes, sir. page 112 ] Q. 15 Were you there when this policy was

taken out? A. Yes, sir. Q. 16 Tell the court what you know about that? A. Well, Robert Green said he wanted the insurance willed

to Minnie because they were going to be married Easter. Q. 1 7 Who did he tell that to? A. He told that to the insurance man. Q. 1 8 Who else was there at that time and heard this? A. Jumbo Lyons and myself. Q. 1 9 Was your mother there? A. Yes, sir. Q. 20 What did the insurance man say, if anything? A. He said he would just make it out in his name. Q. 2 1 What was your mother doing in those days for

a living? A. Taking in washing. Q. 22 You say Bob Green told the insurance man that'

he and your mother were engaged to be married? A. Yes, sir. Q. 2 3 Did you know that to be true before Bob told

that?


Jo Ella Thomas

A. Yes, sir. Q. 24 Who told you that? A. Minnie.

Q. 25 What presents, if any, had Bob given page 1 1 3 ] your mother?

Q. A. Q. A. Q. A. Q.

later?

A. He gave her a Christmas present. 26 What was that? A coat, I believe.

2 7 Is that the coat she has got on now? Yes, sir.

28 Did he give her anything else? Gave her a bedroom suite.

29 Did your mother give up this washing and ironing

A. Yes, sir. Q. 3 o What did she do then? A. She went down and worked in the cafe. Q. 3 1 Do you know whether Bob bought her any pres-

ents after she went down to work in the cafe? A. Yes, sir. Q. 32 What did he buy her? A. He bought her some dresses and hose and one thing

and another like that. Q. 33 Did your mother have a new wedding dress? A. Yes, sir. Q. 34 How do you know that? A. I went with her to pick it out. Q. 3 5 Where did she get it?

A. She got it at the Budget Shop. page 114 ] Q. 3 6 Do you know what color it was, or any

thing like that? A. It was a skirt and blouse. Q. 3 7 Do you know where your mother got the money

to get her wedding dress? A. I think Bob gave it to her. Q. 38 You don't know that? A. Yes, sir, he gave it to her.

go Supreme Court of Appeals of Virginia

Jo Ella Thomas

CROSS EXAMINATION

.1

By Mr. Jones: X. 1 How long have you lived in Bristol? A. About four years. X. 2 Where did you come from? A. Cleveland. Ohio. X. 3 What was your name before you were married? A. Well, I go by my maiden name. My maiden name is

Jo Ella Thomas.

out? X. 4 You have married since this insurance was taken

A. X. A. X. A.

No. sir, I was married before. 5 Your real name is Jo Ella Hughes? Yes, sir.

6 And your maiden .. name was Jo Ella Thomas? Yes.

X. 7 You are a daughter of Minnie? page 1 1 5 ] A. Yes. sir.

X. 8 Then Thomas is her name too. is it? A. No. X. 9 How do you have the name Thomas as she didn't

have the name Thomas? A. Well-I don't know.

X. IO f am just trying to find out what the situation is. Did she go under the name of Thomas?

A. No, her name is Minnie Donald.

X. 11 Is that your maiden name. Jo Ella Donald? A. No. my father· s name was Thomas. X. 1 2 And she goes under the name of Minnie Donald? A. Yes. X. 1 3 And she has been married to a Thomas? A. Yes. sir. X. 14 So her name was Thomas. Was that really her

name at the time the insurance was taken out? A. No.

X. 1 5 Had she been married to a Thomas? A. That was a long time ago.

1

Minnie Green vs. Southwestern Voluntary ~Asso., Inc. 9 I

Jo Ella Thomas

X. r 6 But she has been married since she was married to Thomas?

A. No, sir. X. 1 7 If Thomas was the name of her last bus

page 116 ] band, then her name was really Thomas at that time?

A. But he's dead and she goes by her maiden name. X. 18 She is also known as Minnie Banks, isn't she? A. Yes, sir. X. 1 9 Now we have four name~Minnie Green, Min

nie Thomas, Minnie Donald, and Minnie Banks. Does she have any more names that you know of?

A. No, sir. X. 20 She has been taking care of herself for the last few

years, hasn't she? A. Yes, sir. X. 2 r Earning her own living? A. Yes, sir. X. 2 2 Doing it by taking in washing? A. Yes, sir.

X. 23 She had saved up some money by washing and ironing hadn't she?

A. Yes, sir.

X. 24 The only time you have known of Green giving her anything was just in the last few months before Green died?

A. Yes, sir. X. 25 Your mother was in good health, wasn't she? A. Yes, sir.

X. 26 And able to take care of herself and make page 1 1 7 ] a living, wasn't she?

A. Yes, sir. X. 2 7 At the time this policy was taken out this man

Green didn't have any job at all, did he? A. No, sir. X. 28 How long had he been out of a job? A. I don't know. X. 29 But he hadn't had any since he came back from

Tennessee, had he?


B. G. Wagar

X. 30 You didn't know of him having any job after he came back from Tennessee ,did you?

A. No, sir. X. 3 1 Did you know him before he came back from

Tennessee? A. Yes, sir. X. 3 2 How long before? A. About two years.

Witness Stood Aside.

·By Mr. Scyphers: The plaintiff rests.

And the said defendant, by its counsel, produces page 1 1 8 ] to the jury the following evidence to maintain the

issue on its part, to-wit:

B. G. WAGAR, the first witness, called by and on behalf of the Defendant, being first duly sworn, was examined and testified as follows:

By Mr. Jones: Q. 1 Your name is Mr. B. G. Wagar? A. Yes, sir. Q. 2 Mr. Wagar, are you in any way connected at the

present time with the Southwestern Voluntary Association? A. No, sir. Q. 3 You are not a solicitor or salesman of insurance at

the present time for them. A. No, sir. Q. 4 Were you a solicitor or salesman of insurance for

this organization on March 3,, I 94 1? A. Yes, sir. Q. 5 Did you go and see Robert Green and solicit him for

an insurance policy in this association? A. Yes, sir. Q. 6 Where did you find him and where did you talk to

him?


B. G. Wagar

A. I talked to him at his residence on King page I I 9 ] Street or King Alley.

Q. 7 Ab.out what time of day was it? A. Well, I couldn't tell you just exactly what time of day

it was that I was ther~ now. It seems to me like it was in the forenoon.

Q. 8 Who was present at the time you talked to him? A. He and his wife. Q. 9 Anyone else present? A. Not that I recollect. Q. 1 o When the application for the insurance was made

out, did you make or fill in the blanks in the application? A. Yes, sir. Q. 11 I show you an application dated March 3, 1941,

signed by Robert Clayton Green, and ask you if that is the application you filled out-is that the one?

A. Yes, sir. Q. 12 I will ask you to file that as Exhibit No. I to your

testimony. A. I will.

DEFENDANT'S EXHIBIT NO. 1 - Application

7 DAY TRIAL APPLICATION BLANK

If accepted, please send me a policy for each of the page 119a ] persons named below. If I am not thoroughly

satisfied, I will return the policy within 7 days from date received and my money will be cheerfully refunded at once.

1. Name in Full? Robert Clayton Greene 2. Occupation? Cook Color? Col. 3. Address 1 1 2 King St. Bristol, Va. 4. Beneficiary? Minnie Greene 5. Relationship? Wife. 6. Name and Address of Employer? Not working. 7. Where shall Policy be Sent? 1 1 2 King St.-Will Deliver.

I desire to cover by insurance the following members of my immediate family: Total Stipulated Monthly Premium $ ....


B. G. Wagar

8. Print Full Names of Persons to Be Insured (including the ap-plicant named above) .

Robert Clayton Greene, Sex, Male. Relationship to Applicant, Self. Date of Birth,. 4/16/07. Age 34. Height, 5 6Yz Weight, 180. Amount Applied For, 300.00. Stip. Monthly Rate, 51.

Application received 3/ 4/ 41. Application approved 3/ 4/ 41. Date of Policy 3/15/41.

7-100-9213 (Dead)

Where space below is insufficient, make additional remarks in space provided on reverse side.

9. Have you or any person upon whose life insurance is requested in this application applied for life, health or accident insurance without re.ceiving the amount or kind of policy applied for? No.

1 o. Is there now pending any application for insurance on your life or the life of any persons upon whom insurance is re-quested in this application? No.

I I. Are you, and each of the persons upon whose lives insurance is requested, now in good health? If not, give details. Yes.

I 2. Are you or any of the persons upon whose lives insurance is requested, deformed, lame, maimed, or ruptured? If so, give details. No.

13. Have you, or have any of the persons upon whose lives insurance is requested, any mental or physical infirmity or any defect in hearing or vision? No.

14. Have you, or have any of the persons upon whose lives insurance is requested, during the past three years, lived with or been intimately associated with any person afflicted with tuber-culosis or other infectious disease? No.

r 5. Have you, or have any of the persons upon whose lives insurance is requested, ever used wines, spirits or malt liquors or opium, cocaine or other narcotics? No.


B. G. Wagar

16. Have you, or have any of the persons upon whose lives insurance is requested, ever had any disease of the brain or nervous system, heart or lungs, cancer or tumor of any kind, vertigo, hernia, rheumatism, tuberculosis, goiter, or any other disease or infirmity? If your answer is "Yes" state particulars, and give name of attending physician. No.

I hereby represent and declare that my health is good and my habits are temperate, and that the health of all those upon whose lives insurance is requested in this application is good and . their habits are temperate, that I have read all the foregoing questions and answers, and that the answers to each of them are full, complete, and true, and I agree that said answers and the answers to be given by me or any of the persons upon whose lives insurance is requested in this application, to the medical examiner, should a medical examination be required, shall each and all be treated as material to the risk and form a part of the policy contract if issued by the Association.)

I hereby waive the privilege afforded by law forbidding or exempting physicians or other persons from disclosing information imparted to them in a professional way and I authorize any physician or other person who has attended me or any of the persons upon whose lives insurance is requested in this application to disclose to said Association any information thus acquired.

I further agree that the insurance applied for will not take e.ffect until the policy is issued and delivered to me during the continuance in good health of myself and all persons upon whom insurance is requested in this application.

I, or we understand that the policy for which we have applied is subject to extra or lower premium calls as explained in policy. I. or we hereby appoint and constitute E. F. Willis to be our lawful attorney in fact, and in our stead is hereby authorized and empowered to cast my, or our vote at any meeting. This proxy shall continue in force until revoked by us in writing and forwarded to the Association by registered mail at least ten days prior to any meeting of the members, but in no case shall same be effective more than one year from date of this application.


B. G. Wagar

If total stipulated monthly premium is less than $1.00 per month the applicant is required to pay quarterly; if $ 1.00 per month or more the applicant may pay monthly.

Dated at Bristol, Va., this 3rd day of Mar., 1941. Witness B. G. Wagar. Applicant's Signature, Robert C.

Greene. Incorporated by the State Corporation Commission of the

State of Virginia. Under supervision of the INSURANCE DEPARTMENT

of the State of Virginia. No medical examination required. Benefits payable to a specified beneficiary.

E. F. WILLIS. Bristol, Virginia. Secretary-Treasurer.

Schedule of stipulated Monthly Premiums, Policy No. 7. Natural or Accidental Death Benefits, Accident Concession.

COST FIRST MONTH is 25 cents plus regular stipulated monthly premium. This amount must accompany application.

Below is schedule of maximum benefits for each age for the stipulated monthly Premium of 16c,. subject to policy provisions, provides.

Age Next Un- Af-Birthday der ter

I I 2 3 4 5 6 7 Yr. Yr. Yrs Yrs Yrs Yrs Yrs Yrs

l ...... $23 $53 $78 $103 $125$ 145 $175 $190 2 ...... 53 78 103 125 145 160 185 3 ...... 78 103 125 140 155 170 4 ...... 103 125 140 155 170 5 ...... 118 135 150 165 6 - 165 ...... 133 150 7 ...... 143 160 8 ...... 153 9 ...... 163

When the amount of insurance according to this table reaches the highest su~ stated for an age it will continue at that


B. G. Wagar

amount during the lifetime of the insured, subject to the terms and conditions of the policy.

COST FIRST MONTH is 25 cents plus regular stipulated monthly premium. This amount must accompany application.

STIPULATED MONTHLY PREMIUMS

Age Age Nearest $100 $200 $300Nearest $100 $200 $300 Birthday Birthday 10-20 ... . I I .22 .33 51 .33 .66 .99 21 . I 2 .24 .36 52 .35 .70 1.05 22 ...... . I 2 .24 .36 53 .37 .74 I. I I

23 ...... . l 2 .24 .36 54 .38 .76 I. 14 24 ...... . I 3 .26 .39 55 .40 .Bo 1.20

25 ...... .14 .28 .42 56 .42 .84 1.26 26 ...... .14 .28 .42 57 .44 .88 1.32 27 ...... .14 .28 .42 58 ·45 .90 1.35 28 ...... .14 .28 .42 59 .48 .96 1.44 29 ...... . I 5 .30 .45 60 .50 1.00 I.50 30 ...... . I 5 .30 .45 61 .52 1.04 1.56 31 ...... . 16 .32 .48 62 .56 I. l 2 1.68 32 ...... . I 6 .32 .48 63 .58 I. l 6 1.74 33 ...... . I 7 .34 .5 l 64 .62 1.25 1.85 34 ...... . I 7 .34 .5 I 65 .65 1.30 1.95 35 ...... . I 8 .36 .54 66 .68 1.36 2.04 36 ...... . 18 .36 .54 67 .72 1.44 2. 16 37 ...... . I 8 .36 .54 68 .76 1.52 2.28 38 ...... . 19 .38 .57 69 .Bo 1.60 2.40 39 ...... .20 .40 .60 70 .85 1.70 2.55 40 ...... .20 .40 .60 41 ...... .22 ·44 .66 42 ...... .22 .44 .66 43 ...... .23 .46 .69 This policy pays for Natural or

44 ...... .24 .48 .72 45 ...... .25 .50 .75 Accidental Death, also provides 46 ....... .26 .52 .78 47 ...... .27 .54 . 8 I liberal accident concessions .

98

48 ......

49 ......

50 ......


B. G. Wagar

.28 .56 .84 .30 .60 .90 . 3 I .62 .93

Quarterly payments are I Yz % less than three monthly payments.

Semi-Annual payments are 3 % less than six monthly payments.

Annual payments are 6 % less than twelve monthly payments.

The rates set forth above are for the amounts shown, and are subject to regulations provided in policy. The application is easy to fill out. Simply fill in, add up the column showing monthly stipulated premium. To this add 25c for each person shown thereon. The head of the family or person makJng application should then sign the application and forward same together with check for Entrance Fee and first stipulated monthly premium.

INSURANCE-How it can serve your personal needs-

1. FINAL EXPENSES-To pay doctor and hospital bills and burial costs-the first duty of every man to his family.

2. DEBTS-Own a special policy to pay off those little bills and debts that will be left-otherwise your family will be obliged to pay them.

WE PAY ALL CLAIMS IN FULL ACCORDING TO POLICY CONTRACT

WE ALSO CATER TO LODGES AND SOCITIES OF ALL KINDS. If you are a member of any kind of an organization that you feel is in need of life protection, please have your secretary take the matter up with us. Tell us the amount of insurance desired (not to exceed $300.00). If the ages are furnished (not above 70) for each member of the organization we will figure the cost, etc. ACT NOW!

SOUTHWESTERN VOLUNTARY ASSOCIATION, INC. Bristol, Virginia.


B. G. Wagar

Q. 1 3 Where did you get the information that page 120 ] was put on that application with reference to the

man's age and who he wanted as his beneficiary, etc.?

A. From Robert Green. Q. 1 4 Did you ask him those questions there? A. I asked him all the questions, yes, sir. Q. 1 5 Did he give you the answers to them? A. Yes, sir. Q. 1 6 Are the answers he gave you the answers you put

down on that blank? A. Yes, sir. Q. 1 7 What relationship did he say the beneficiary was? A. Minnie Green was his ~ife. Q .. 1 8 Does that show her name there and the relation

ship-wife? A. Yes, sir. Q. 1 9 Did either of them say anything to you about her

not being married to him? A. No. Q. 20 Was there any statement made or any intimation

given to you at the time that she was not married to him? A. No, sir. Q. 2 1 Now if you had been told-

By Mr. Scyphers: I object to that, if your Honor please.

By Mr. Jones: page 1 2 1 ] Let me ask the question first.

Q. 22 Now if you had been told at the time that she was not married to Green, would you or not have taken the application?

By Mr. Scyphers: We Object.

By the Court: Sustain the objection. The question is whether or not he

did do it, not whether or not he would have done that.

~00 Supreme Court of Appeals of Virginia

B. G. Wagar

By the Witness: Well, I can state-

By Mr. Jones: Don't answer, Mr. Wagar, and don't answer this question,

Mr. Wagar, but if your Honor please, I want to ask the witness and I think it is material that he should answer, whether or not if they had told him that fact whether or not he would have taken the application at all.

By the Court: I sustain the objection. I don't think that is a proper ques

tion. It is testified here he was told that. Of course he denies it. It is not a question of what he would have done had he been told, but what was done at the time.

By Mr. Jones: We except to the court's ruling.

By the Court: You possibly want to put in your avowal. You can do

that now or later.

By Mr. Jones: page 122 ] We will want to show that.

By the Court: Maybe you had better do that now.

Note: The following proceedings were had in Cham hers, in the

absence of the jury:

(Q. 22 was read to the witness.)

By Mr. Scyphers: The plaintiff objects to this question, because it is not a

question of what he would have done but it is a question of what he did do, and the witness can only detail the facts as to what happened, and it becomes a question of law and a question of fact for the jury to determine whether this witness is correct in his statement of facts, or whether those that have heretofore testified are.

Minnie Green vs. Southwestern Voluntary Asso., Inc. Io 1

B. G. Wagar

A. I would not have taken an application with that beneficiary if I had been informed that she had no marital relationship.

By Mr. Jones: The defendant excepts to the ruling of the court in exclud

ing the testimony of this witness from the jury because it is upon the inducement of the plaintiff and the plaintiff's representation, the false representation of the plaintiff made by Robert Green in her presence and on her behalf that she was his wife that caused the policy of the association to be issued.

By Mr. Scyphers: page 123 ] The plaintiff answers and says it denies that there

was any fraud or false misrepresentation in the inducement to have this policy issued, and that this is one of the issues to be tried by the jury.

Note: The following proceedings were had in the court room, in

the presence of the jury.

CROSS EXAMINATION

By Mr. Scyphers: X. 1 You are Mr. B. G. Wagar? A. Yes, sir. Wagar. X. 2 W-a-g-a-r. What are you doing now? A. I am selling Bibles. X. 3 How long did you solicit insurance for the South

western Voluntary Association of Bristol? A. Three months. X. 4 When did your employment begin and end with

that company? A. I think I started to work on March I st, and worked

until the last of May. X. 5 Had you ever sold insurance, other old line life,

fraternal. or burial insurance before? A. Yes, sir. X. 6 With whom had you heretofore been connected in


B. G. Wagar

this business and how long did you work? page 1 24 ] A. I worked for the Southwestern Voluntary

Association before, and I worked for the Home Beneficial before, and also other companies.

X. 7 Well, give them. I want to know what you have been doing?

A. The Life and Casualty, the Home Beneficial, and the Southwestern Voluntary Association.

X. 8 How many different times have you worked for the defendant here, the Southwestern Voluntary Association?

A. Twice. X. 9 How long did you work for them the first time? A. About four months. X. 1 o Your employment ceased with this company by

reason of the fact that they failed to pay this policy, didn't it? A. No, sir. X. 1 I Then you didn't have any difficulty with this

company by reason of them failing to pay this policy? A. No, sir, because that wasn't my part of the busir.ess. X. 12 It was your part to get the applications? A. Yes, sir. X. 13 What did you get per application? A. Per application I received twenty-five cents entrance

fee, and the first month's premium, and should page I 25 ] the business be carried through the third month

I was to receive the third month's premium as my compensation, together with $7.50 a weeks salary.

X. I 4 How long had you been working for this com-pany when you took this application?

A. Just a few days. X. 1 5 You took it on the third of March? A. Yes. sir. X. 1 6 You had been working three days? A. Yes, sir. X. 17 How come you to go to the home of Robert Green? A. Well, I was soliciting insurance wherever I could find

insurance to be written. X. I 8 Where you could get it? A. Yes, sir.

Minnie Green vs. Southwestern Voluntary Asso., Inc. I 03

B. G. Wagar

X. 1 9 And any way to get the policy-that was your business?

A. Any legal way. X. 20 Did you know Robert Clayton Green before you

met him on March 3rd? · A. No, sir. X. 21 Youdidn'tknowhim? A. No, sir.

X. 2 2 Did you ever contact him after you took page. 126 ] this application?

A. Yes, sir. X. 2 3 What was that for-to deiiver the policy? A. No ,sir, to collect on that application, and later I de

livered the policy at his home. X. 24 So you first took the application, then later re

turned to collect the application fee? A. Yes, sir. X. 25 And thirdly you returned to deliver this certifi

cate? A. Yes, sir. X. 26 Is this the certificate bearing policy No. 7- I oo-

9 2 I 3-is that the one you delivered to Robert Green? A. Yes, sir. X. 27 You did receive your premium, your application

fee and the premium? A. Yes, sir. X. 28 That put the policy in force to when? A. Until the first of the month following. X. 29 When was that? A. That would have been the first of April-no that

would have been the first of May. X. 3 o In other words you received the premium

A. This policy was issued March I 5th. page I 2 7 ] X. 3 1 You received the premium yourself as

agent of that company to carry that policy into effect until the first day of May, I 94 I?

A. Yes, sir. · X. 3 2 Then the premium was paid on April 12th, 1941?

A. Previous to the issuance of the policy.


B. G. Wagar

X. 33 And covering April 12, 1941? A. Covering up through April 12th-it covered to the

first of May. X. 34 Was or was not the policy in force April 12, r 941? A. It was in force. X. 3 5 Did you receive the death certificate of Robert C.

Green in this case? A. No, sir, I did not. X. 36 Do you know who did? A. I presume that was presented to the insurance office I

don't know anything about that. X. 3 7 Who did all this writing here? A. That was done in the office. X. 3 8 Who did this up here? A. I did that. X. 39 What writing, if any, did Robert Clayton Green

do? A. This right here.

page 128 ] X. 40 What is it? Tell the jury. A. Robert Green.

X. 4 r Where is that signature signed? A. Signed on the applicant's signature line. X. 42 You saw him sign that? A. Yes, sir. X. 4 3 And you wrote your name there? A. Yes, sir, I wrote my name. X. 44 As a witness? A. Yes, sir. X. 45 You don't deny that Bob Green and Minnie Don

ald or Minnie Green, or whatever you may call her-this woman here with the red and black hat on-was there, do you? You saw her there?

A. Yes, sir. X. 46 She is the woman? A. Yes, sir. X. 47 Did you see Jo Ella there, that woman there-her

daughter? A. I have seen her before, but I didn't see her there that

day.


B. G. Wagar

X. 48 What about Jumbo over there on the other side -the man sitting there near to them. You saw him there that

day and talked to him? page 1 29 ] A. No, I didn't see him there that day, the day

I had the application signed, but I saw him there the day I delivered the policy. On that day he signed an application for insurance with me himself, and she suggested that he make her the beneficiary, and I told him it would have to be some marital relationship or blood kin.

X. 49 Didn't he tell you he wanted his sister made the beneficiary?

A. He did, yes, sir.

X. 50 And nothing was said about Minnie Donald at all? A. She spoke up and said that, and I said it would have

to be related by marriage or blood relationship, so he made his sister beneficiary under the application he signed, but he never paid the application and no policy was issued. .

X. 5 1 Didn't you state a minute ago you weren't definite or sure who you saw up there, whether or not they were thf} only ones there?

A. I said I didn't remember seeing anybody else there in the room.

X. 52 You are not saying they weren't there? A. I couldn't say for certain they wasn't there. I don't

remember. X. 5 3 You issued hundreds of applications during those

three months, didn't you? page I 3 o ] A. I wrote several, yes, sir.

X. 54 How many would you average per day over the period of three months you worked there?

A. Probably one or two a day. X. 5 5 Now what brings to your mind the particular

things in this particular case when you worked for this company and sold insurance all your life-what causes you to remember so many definite things about this case?

A. Well, I remember that because those were the circumstances.


B. G. Wagar

X. 56 I know, but you have different circumstances at every house you go to, don't you?

A. Oh yes. X. 5 7 And your memory is good enough that you can go

back to some certain day and tell the circumstances surrounding any application?

A. I couldn't tell on some certain day in every instance, but in this instance I do remember.

X. 58 Now, Mr. Wagar, isn't it a fact that you are testifying from what is on this paper here?

A. That is what he gave me as the information. X. 59 It is just because of this paper saying that - be

cause of what this paper says that you are testifying from -You don't have any independent recollection of

page I 3 I ] this case? A. Yes, I do have an independent recollection of

that. That is what he told me. X. 60 You have been in the rug cleaning business some

too, haven't you? A. Yes, sir, I have solicited rug cleaning work. X. 6 I You told this colored boy by the name of Woods

you quit them because they wouldn't pay this claim which 1s just and honest, didn't you, going to Kingsport one day?

A. I don't think so. X. 62 You wouldn't say you didn't? A. I don't remember ever making a statement of that

kind. X. 63 I said you wouldn't say you didn't say it? A. I don't think I made any statement of that kind. X. 64 Do you know a colored boy named Phillip

Woods that helped you in the cleaning business? A. Yes, sir. X. 65 Is that he over there? A. That is Philip Woods-that is the name he told us. X. 66 You did take him to Kingsport some with you? A. He went to Kingsport, yes, sir, with the crew.



E. F. Willis

E. F. WILLIS, the next witness, called by and on behalf of the Defendant, being first duly sworn, was ex

page 1 3 2 ] amined and testified as follows:

DIRECT EXAMINATION

By Mr. Jones: Q. I Mr. Willis, if the association had known or been in

formed that is if you as secretary and treasurer of the company had known Minnie Green was not the wife of Robert Green would it have issued the policy in question?

By Mr. Scyphers: I object for the same reasons I objected to the other man

testifying-it is not a question of what they would have done. . .

By the Court: I don't believe it is exactly the same situation. What is the

question?

By Mr. Jones: The question is whether or not had he known she was not

his wife, whether or not the association had known that fact, whether or not they would have issued that policy. This is on the question of fraud in the inducement.

By the Court: No, I believe it is this: If they had known it, if the insur

ance company, if Mr. Willis, for instance, had known she was not his wife and had issued the policy, then I think the policy would have been valid. If he didn't know it, and the applica-

tion stated she was his wife, then it is a question page I 3 3 ] of what happened when the application was tak

en.

By Mr. Jones: I will ask this question first, then.

Q. 2 Mr. Willis, did the association, or you as secretary and treasurer of the company. at the time of the issuance of the policy. know this woman who is now bringing suit was not the wife of Robert Green?


E. F. Willis

By Mr. Scyphers: My objection to that is notice to the agent is notice to the

company.

By the Court: Overrule the objection. That is a question of law, I think.

By Mr. Scyphers: Exception.

Q. 3 Did you know she was not his wife? A. No, we did not. The only thing we had to go by

was the application, which shows she is his wife. Q. 4 When did the association learn she was not his wife,

or whether or not she was his wife with reference to the date the man died?

A. After the death of the assured we heard she was not the wife of Green.

Q. 5 What did you do then? A. In order to clear our records so it would be clear for the

insurance department, I asked her to furnish me with a copy of her marriage certificate showing she was the wife of Robert C.

Green, which she failed to do. page I 34 ] Q. 6 When you made that request, up to the

time you made that request had she been to see you? A. No, I don't think she had, although she had filed the

papers in the office. I had not talked to her personally. Q. 7 But when you requested her to furnish you with a

marriage certificate, then she did come to see you? A. She came to see me a few days after that and asked me

what we were going to do about the claim, or some question to that effect. I was leaving the office at that time, and I asked her about the marriage certificate and she said, "No, I am not his wife. I am his common-law wife." Well, I said that is too deep for me-that is a lot of law I don't know anything about, and we don't honor such things as that in our organization. Willie Brown was along with her and I said to both of them, "I don't think we can pay the claim at all under the laws of Virginia. I have talked the matter over with Mr. Jones, who is our attorney, and if you like you can call and talk to Mr. Jones. He


E. F. Willis

will be glad to explain everything to you. It is not necessary to employ a lawyer or anything of that kind. You go to Mr. Jones and he will tell you exactly how the matter stands, but I can't pay it under the laws of Virginia.

By Mr. Scyphers: I object to that; if your Honor please, as being self-s~rving.

By Mr. Jones: page 13 5 ] They brought that out, about the conversation be

tween Brown and them.

By the Court: Overruled.

Q. 8 Now, Mr. Willis. if the association had known that this woman was not his wife would it have issued the policy in the first place?

A. No, sir.

By Mr. Scyphers: We renew our objection.

By the Court: That is the same question?

By Mr. Jones: Yes, sir, same as the first question.

By the Court: I think the question is simply this-even though the policy

might have been legal if the company with knowledge of the fact issued it, why it would have been a ratification by the company So just for the purpose of showing whether or not the company did ratify it, I think he might answer it.

A. We would not have issued the policy had we known she was not the wife of Robert Green.

By Mr. Scyphers: We except to the court's ruling in not sustaining my objec

tion, and move to strike that part of the evidence.

By the Court: When was the policy issued?

I IO Supreme Court of Appeals of Virginia

E. F. Willis

By the Witness:

'•

page 13 6 ] March 15, 1941 is the date of the policy. The ap-plication is dated March 3rd. We only issue our

policies on the I st and 15th. The applications coming in after the first are issued on the 15th, or as of the 15th of that month.

By the Court: What official actually issued it? Did you know of the is

suance at the time it was issued?

By the Witness: A. Yes, sir.

By the Court: The question I will ask you is this: At the time the policy

was issued did you know or had you heard or had any intimation been given that Minnie Green was not the wife of this Robert Green?

By the Witness: I had no knowledge whatever of that fact until after Rob

ert Green was killed.

CROSS EXAMINATION

By Mr. Scyphers: X. 1 What officials of this company sign this policy and

authorized its issuance and executed it for the part of the association?

A. The policy is personally signed by E. F. Willis, as secretary.

X. 2 That is you. A. That is right. The signature of the president is print

ed. page 1 3 7 ] X 3 Did Minnie Green or Minnie Donald file

with you a death certificate? A. She did. X. 4 Will you give it to the court please, sir?

Note: A paper was handed to counsel for plaintiff by the witness.

Minnie Green vs. Southwestern Voluntary Asso., Inc. I I 1

E. F. Willis

X. 4 Is this the death certificate she filed with you? A. Yes, sir. X. 5 Will you file that as an exhibit to your testimony? A. Yes, sir.

DEFENDANT'S EXHIBIT NO. 2-Death Certificate

page 137a ] CERTIFICATE OF DEATH

Commonwealth of Virginia Department of Health, Bureau of Vital Statistics

Depart of Commerce, Bureau of the Census Registered No. 5 6

I. Place of Death, Wash. County. Registration district No. 02950. Magisterial district Goodson. City of Bristol. Is place of death within corporate limits? Yes.

2. Usual residence of deceased. State Va. County Wash. City, Bristol, Street No. I I 2 King St. Is place of residence within corporate limits? Yes.

3. Full Name, Robt. Green. 3b veteran, No. 3c Social security number, No. 4. Sex, Male. 5. Color or race Negro. 6a Single, married, widowed, divorced, Widowed. 6b Name of wife, Naomi Green. 7 Date of birth of deceased, April 16, 1905. ? Age, 35 years, 1 I months, 27 days. 9 Birthplace Va. 10 Usual occupation, Restaurant Prop. 1 1 Industry or business Restaurant. 1 2 Nam of father, Frank Green. 1 3 Birthplace, Va. Mother's maiden name, do not know. Mother's birthplace, do not know.

16a Informant's own signature, Unice Green. 16b Address, Radford, Va.

I 7a Burial, cremation or removal? Buried. 1 7b Place, Citien's zCem. Date, April 14, 1941.

18a Signature of funeral director, Brown's Funeral Home 3 1 o Lee St. Bri~tol, Va.

I 9a (Date received by reg) Filed 4- 17-4 I. 19b (Local, deputy, or subregistrar's signature) M. Lindsey.

MEDICAL CERTIFICATE

20 Date of death, April I 2, I 941 at 2 p. m.

.l I 2 Supreme Court of Appeals of Virginia

E. F. Willis

2 1 I hereby certify that I attended the deceased from--19-- to --19--, that I last saw dead. Alive on April 1 2, 1 941, and that death occurred on the date and hour stated above. Immediate cause of death;, gun shot wound left chest by unknown party. Name of operation, none. Date of operation, none. Autopsy, yes.

2 2 If death was due to external causes fill in the follow-ing:

(a) Accident, suicide, or homicide (specify) Homicide (2- 1) (b) Date of occurence, April 12, 1941. ( c) Where did injury occur? Bristol. Wash. Co., Va. ( d) Did injury occur in or about home, on farm, in industrial

place, in public place? His home. While at work? No (e) Means of injury, gun shot wound chest.

23 Signature, Wm. R. Rogers, Bristol, Va. 4-17-41. I hereby certify that the above is a true and correct repro

duction of the original certificate on file in the State Bureau of Vital Statistics, June 10 1941 ESTELLE MARKS,

Asst. State Registrar.

X. 5 When does the death certificate show that page 138 ] Robert C. Green, the assured, died?

A. April 1 2, 194 r. X. 6 Was this policy in force on April r 2, 1941? A. It was. X. 7 Mr. Willis, do you do anything else other than

work for the Southwestern Voluntary Insurance Association? A. Work for the Southern Railway. X. 8 Did Minnie Donald or Minnie Green in the pres

ence of Willie Brown come to see you at the Railroad Shops? A. She did. X. 9 At that time did Minnie Green state to you she was

not his lawful wife but was engaged to marry Robert C. Green? A. I will tell you her statement she made to me. She told

me--X. 1 o I am asking you did she tell you that. You can

say yes or no. A. Repeat the question.


E. F. Willis

Note: X. 9 was read to the witness. A. She did.

By the Court: Hadn't Mr. Willis already stated that?

By Mr. Scyphers: No, sir, he hadn't or I wouldn't have asked him.

By the Court: page 139 ] Didn't he say ~he told him she was his common

law wife, and he said that was too deep for him?

By the Witness: That is right.

By Mr. Scyphers: Yes, but that is not what he said this time.

X. 1 1 Now, Mr. Willis, do you know this man B. G. Wagar?

A. I do. X. 12 Did he hold any official position with your com-

pany on the 3rd of March, 1941, and the 15th of March, 1941? A. He was a licensed agent for our company. X. 13 He was a licensed agent for your company? A.- That is right. X. 14 What do you mean by a "licensed agent for your

company"? A. I don't know how to explain it otherwise than he was

a licensed agent. X. 1 5 You mean the insurance department of Virginia

had issued him a license authorizing him to solicit insurance for your company?

A. That is right. X. 1 6 That is what you mean by a licensed agent, i.s that

right? A. You can take it any way you want to. That is what

it is. X. 1 7 You had him out in the field soliciting for

page 140 ] you on those days?

114

A. I did.


E. F. Willis

X. 18 You don't know what was said to him up at this house on 1 1 2 King Street other than what this paper, this application shows, do you?

A. I have no knowledge whatever of what happened there.

X. 1 9 You say you never had any personal conversation with him about this one?

A. Not at all. I don't question the agents when they turn in those things. We go by what they write in the applications.

By a Juror: I would like to ask the gentleman a question please.

By the Court: What do counsel think about it?

By Mr. Scyphers: I think it is perfectly legitimate.

By Mr. Jones: We have no objection.

By Mr. Scyphers: We are only interested in the facts.

By the Court: I am going to warn counsel if the question is objectionable,

legal or otherwise, you have waived it.

By Mr. Scyphers: page 141 ] I don't know about that.

By the Court: Well, I know about it. Go ahead and ask your question.

By the Juror: Do you have investigators to go out into the field and in

vestigate these applications before the policy is issued?

By the Witness: We do not.


Minnie Green vs. Southwestern Voluntary Asso., Inc. 1 I 5

Minnie Green Recalled

MINNIE GREEN, being recalled for further cross examination. was examined and testified as follows:

CROSS EXAMINATION

By Mr. Jones: X. 1 You can read and write, can't you? A. Yes, sir. X. 2 Is this your name here? (Indicating on paper).

By Mr. Scyphers: I would like to see the paper first. (Afterlooking at paper.)

We have no objection to that.

X. 3 I say is that your writing right here-Minnie Green -is that your writing?

A. Yes. sir. X. 4 You received this blank dated May 28,

page 142 ] I 941, called "Certificate of Beneficiary" - did you receive that from the Southwestern Voluntary

Association to be filled out? A. When did you say-May 28th? X. 5 I say you received it to be filled out. didn't you?

I am not asking you when. but I am asking you if you didn't receive it to be filled out?

A. Yes, sir.

X. 6 And you did fill it out. didn't you? A. Yes. sir. X. 7 And you wrote right here, ''Signed Minnie Green,

Beneficiary," didn't you? A. Yes, sir. X. 8 And then out here for relationship you put in the

word "wife". didn't you? A. That is what it is. X. 9 You wrote that in there didn't you? A. Yes, sir. X. 1 o You wrote it in there, and you then went before

a Notary Public and swore to that. didn't you-before Miss Nettie Fulwider and swore to that paper didn't you?



A. Swore to it? X. 11 Didn't you go to a notary public and get this pa

per finished. A. I went to the doctor's office.

page 143 ] X. 1 2 You went to the doctor's office and had the young lady there sign this and put her seal on

it? A. I guess she did, I don't know. X. 1 3 You took it there for her to notarize as we call it? A. Yes, sir. X. 14 That was on the 31st day of May, 1941, wasn't

it? A. I guess it was. . X. 1 5 You knew when you made that statement there,

you knew you were not then his wife and never had been the wife of Green, didn't you?

A. Sure, I did.


By Mr. Scyphers: Q. 1 Now Minnie, who sent you this paper to have this

filled out? A. That company, I guess, the insurance company. Q. 2 Where did you get the paper? A. It come in the mail. Q. 3 And you signed it? A. Yes, sir.

By Mr. Scyphers: I will just read it to the court. It is written on company

stationary.

By the Court: page 1 44 ] Is that being filed?

By Mr. Jones: Yes, I wish to file that as Defendant's Exhibit No. 3.



DEFENDANT'S EXHIBIT NO. 3

Certificate of Beneficiary

P. 0. Box 2 Phone1363

SOUTHWESTERN VOLUNTARY ASSOCIATION INC.

Dominion Bank Building Bristol, Virginia May 28, 1941

R. H. Hawkins, Pres. Directors J. N. Hillman, Vice Pres. E. F. Willis, Sec. and Treas. E. D. Rollins, Med. Examiner S. Bruce Jones, Gen. Counsel

J. N. Hillman S. BruceJ ones R. H. Hawkins P. A. Layman

E. F. Willis E. D. Rollins

CERTIFICATE OF BENEFICIARY

I hereby make oath that at the time of the death of Robert Greene, I, Minnie Greene, was his beneficiary under the by laws of the Southwestern Voluntary Association, Inc., as named in policy 7-100, 9213.

This 3 r day of May 194 r. Signed Minnie Greene wife Signed and sworn before me this 3 1 day of May r 941.

NETTIE FUL WILDER, Notary Public

My commission expires Jan. 9, 1943.

By Mr. Scyphers: page 145 ] (Reading:) "Southwestern Voluntary Associa-

tion, Inc., Dominion Bank Building, Bristol, Virginia, May 28, r 941." Then it has a list of officers and directors. "Certificate of Beneficiary. I hereby make oath that at the time of the death of Robert Clayton Greene, I, Minnie, Greene, was his beneficiary under the by laws of the Southwestern Voluntary Association, Inc., as named in Policy 7-100, 9,-

IIB Supreme Court of Appeals of Virginia


213. This 3 1 day of May, 1941. Signed, Minnie Green, Beneficiary, Relationship, wife."

Q. 4 Did you write any of that on the typewriter, or was that all done before you got it?

A. This was. (Indicating.)


By Mr. Jones: X. 1 This line right along here where it is written in ink

opposite the word "signed"-those three words, "Minnie Green, wife," those three words were written by you, weren't they?

A. I think the lady wrote that. I don't think I wrote that. (Indicating.)

X. 2 What lady wrote it? A. Whoever filled it out. X. 3 This Miss Fulwider, who signed down here?

A. Yes, sir. page 146 ] X. 4 It is your idea that the notary public filled

that in? A. The who? X. 5 The notary public who completed the paper? A. She wrote this. (Indicating) X. 6 This lady wrote her own name here, but your idea

is she filled this in up here? Is that your idea now? A. This? (Indicating). X. 7 Yes, up here. A. Yes. X. 8 You think now she filled that in? A. I said this is hers. X. 9 What I want to get at is this line right here. (Indi

cating.) The word "signed" is typewritten? A. I didn't do that. X. 1 o I know you didn't. You didn't do any typewrit

ing, did you? A. No, sir. X. 1 I But you did write these three words written in

ink, did you not-"Minnie Green, Wife?" A. Yes.


Jumbo Lyons, Recalled

X. 12 You did that? A. Yes.


By Mr. Jones: page 14 7 ] We rest.

And said plaintiff, by her counsel, produces to the jury, to maintain the issue on her part, the following evidence in rehuttal, to-wit:

JUMBO LYONS, being recalled in rebuttal by and on behalf of the plaintiff was examined and testified as follows:


By Mr. Scyphers: Q. 1 It has been testified here by Mr. Wagar that Min

nie Green asked you to have her name placed in your insurance policy as beneficiary. Did she do that?

A. No, she did not.


By Mr. Jones: X. 1 Didn't she state there at the time who to put in as

your beneficiary? A. No, sir. X. 2 She didn't say anything at all about that? A. She didn't say anything at all about the policy. X. 3 Why did you want to take out insurance for your

sister? A. I was taking it out for myseif.

page 148 ] X. 4 It was made payable to your sister? A. Made her beneficiary.

X. 5 The beneficiary is the one who gets the money? A. That's right. X. 6 Why did you take insurance out payable to your

sister?


Minnie Green

A. That's the only body I got is my sister and father. X. 7 You didn't make it payable to your father? A. No, sir. X. 8 How old is your sister? A. She's twenty-four.


MINNIE GREEN, being re.called in rebuttal, was examined and testified as follows:


By Mr. Scyphers: Q. 1 Did you ask at the time that Jumbo was taking out

his policy to have you made as beneficiary? A. Sir? Q. 2 When Jumbo was buying a policy, did you tell him

to have it made to you? A. No, sir, I didn't say anything to him about

page 1 49 ] his policy. Q. 3 You didn't open your mouth?

A. No, sir.

By Mr. Jones: Was that on the same day as the other policy?

By the Witness: No, sir, I don't think it was.

By Mr. Wagar: No, sir, it was a different time.

Witness stood aside.

STIPULATION

It is stipulated as a fact that the premium or premiums which may have been due on the policy in suit have been paid and were paid at the time of the death of Robert Green, that subsequent to his death the defendant has offered to refund 'the premium and all amounts so paid by the insured to the defend-


ant, and that this offer to refund has been continuous down to the institution of the suit and down to the date of trial.

By Mr. Scyphers: I want him to state in there how he offered to refund it,

and in what amount. I want that to truly reflect what happened. I want it to show you offered them a check and in what amount. Your records will show the amount and how you offered it.

By Mr. Jones: page 1 5 o ] Well, we offered to pay it to them.

By Mr. Scyphers: How? By check?

By Mr. Jones: I didn't present a check. We told them we would pay them

and they said they wouldn't take it.

By Mr. Scyphers: In what amount?

By Mr. Jones: Let me see if I can find the amount. The amount there of

being seventy-six cents. At the time I offered to refund the premium I had the money in my pocket and was ready to deliver it to her.

By Mr. Scyphers: I am not agreeing to that.

-~j)' the Court: But they did offer the refund?

By Mr. Jones: Yes, sir, and she said she wouldn't take it.

Note:

Counsel for both the plaintiff and defendant announced that they had concluded the introduction to evidence, the foregoing being all the evidence and exhibits introduced upon the trial of the case.


By Mr. Jones: At this time we wish to demur to the evidence.

Note: At 11: 25 A. M. the jury was discharged for lunch until

1: oo P. M., and the following proceedings were had in their absence:

And the said defendant says that the matters aforepage 15 1] said so introduced and shown in evidence to the jury

by the plaintiff is not sufficient in law to maintain the said issue on the part of the plaintiff, and that is, the said defendant, is not bound by the law of the land to answer the same.

Wherefore, for want of sufficient matter in that behalf to the said jury shown in' evidence, the said defendant prays judgment and that the jury aforesaid may be discharged from giving any verdict upon the said issue, and that the said plaintiff may be barred from having or maintaining her aforesaid action against it, and for grounds of the demurrer to the evidence the defendant states in writing:

1. That the evidence shows that the plaintiff is not entitled to recover by reason of the provisions of Chapter 1 69-A of the Virginia Code of 1936, that the evidence shows that the plaintiff was not related to the insured in the degree specified by the statute, nor is she a dependent within the meaning of the statute.

2. That the evidence shows that the policy was issued upon the false and fraudulent statements made by the insured in. his application for the insurance, which application is by the· terms of the policy made a part ·thereof, and was the inducement on which the policy was issued, and under the terms of

the policy it is void and of no effect when issued page 152 ] by reason of fraudulent representation made by

the insured in the application.

Note:

JONES and WOODWARD, Attorneys for Defendant.

At this point a discussion was had off the record, after which Court was recessed from 1 2: oo M. until 1 : oo P. M. for lunch.


AFTERNOON SESSION

Abingdon, Virginia. October I 1, I 94 I.

Met at the expiration of the recess.

Present: The same parties as heretofore noted.

Note: The following proceedings were had in chambers, in the ab

sence of the jury.

By Mr. Scyphers: I am going to join in the demurrer, and I have my joinder

prepared.

Note: Said joinder of the plaintiff, is in the words and figures fol

lowing, to-wit:

Virginia:

page 1 5 3 ] In the Circuit Court of Washington County.

Minnie Green or Minnie Donald, Colored, Plaintiff vs. JOINDER IN DEMURRER TO EVIDENCE

Southwestern Voluntary Association, Inc., Defendant

And the plaintiff says that the matters aforesaid, to the jurors in form aforesaid, shown in evidence, are sufficient in law to maintain the issue joined on the part of the plaintiff. Wherefore, for as much as the said defendant has given no answer to the same, the said plaintiff demands judgment, in the amount of $300.00 according to the tenor of the contract or insurance policy, and that the jury be discharged, and that the defendant be convicted, etc.

CLAYTON SCYPHERS.

CLAYTON SCYPHERS, P. Q. CLAYTON SCYPHERS, Bristol. Virginia.

By Mr. Scyphers:

Attorney for Plaintiff.

I also want to ask my client one more question. I want to


ask her if she made the statement to Mr. Willis that she was his common-law wife.

By Mr. Jones: page 154 .] We object to that. We have closed the evidence

and let Mr. Willis go home.

By Mr. Scyphers: Mr. Willis admitted that she said that she was his engagc:d

wife-that is what I called him back and asked him. Now what I want to ask her is did she make the assertion she was his common-law wife, which she denies. I don't know whether that is so awfully important but I do want to put it in.

By Mr. Jones: I do object.

By the Court: Sustain the objection. Mr. Willis is gone.

By Mr. Scyphers: If your Honor please, I am afraid that would be awfully

important to me. That is just a slip on my part that I didn't ask it.

By the Court: She has stated what she said, and then he stated what she

told him. The demurrer to the evidence has been made and he is gone. Sustained.

By Mr. Scyphers: All right, si;r. The only thing about that is she stated what

she told him, now he comes along and states she said something else in addition to what she says she told him. The man being gone would affect it because she would just deny it.

By the Court: The record is there of what she said. You can argue that.

By Mr. Scyphers: page 155 All right, sir.

There is no question as to the amount here, 1s there?

By Mr. Jones: No, sir.


By Mr. Scyphers: Let the jury bring in a verdict according to the form for

$300.00.

I want this statement in the record: Plaintiff's attorney, when court convened at I :oo P. M.

on the day of the triaL moved the court to allow him to ask the plaintiff a rebuttal question which he had failed to ask her, namely: Did you make the statement to Mr. Willis as he alleged you did, that you were not his legal wife, but his common-i law wife? Counsel for plaintiff avows that he has talked with this witness during the lunch hour, and counsel avows she says that she will testify that she made no such statement to the witness Willis. As the jury has not retired to find its verdict and no argument has been had, counsel moves the court to allow him to ask her this question, and this question alone.

By Mr. Jones: The defendant objects to recalling the witness and placing

her on the stand at this stage because the plaintiff announced before the adjournment at noon that his evidence was closed, both

in chief and in rebuttal. After the evidence was page 15 6 ] .closed, the defendant demurred to the evidence

Furthermore at the adjournment at the noon hour _the witnesses, including E. F. Willis, present on behalf of the defendant, returned to their homes in Bristol, Virginia, and are not available.

By the Court: I have ruled on this motion. Denied.

By Mr. Scyphers: We except to the action of the court.

Note: At this point a discussion was had off the record, after

which the following occurred:

By Mr. Scyphers: Counsel for the plaintiff comes now and asks permission

to withdraw his joinder temporarily for the sole purpose of putting on the testimony that he has avowed that the witness will swear, and then asks permission to re-file his joinder.

By the Court:


Minnie Greer.i·

You don't have to do that. He may withdraw his demur-rer and go to the jury.

By Mr. Jones: We don't object to this procedure.

By the Court: You understand if he withdraws the demurrer to the evi

dence, he has a right to go to the jury.

Note: The following proceedings were had in the court

page 1 5 7 ] room, in the presence of the jury:

MINNIE GREEN, the plaintiff, being recalled, was examined and testified further as follows:


By Mr. Scyphers: Q. r Minnie, you have been on the stand before today? A. Yes, sir. Q. 2 I call you back for one question. It has been alleg

ed or stated by the witness Willis that when you and Willie Brown, the undertaker, went out to the shop, the railroad shops, to see him, that you stated to him that you were not his l:egal wife, but his common-law wife. Did you make such a statement?

A. No, sir, I did not. Q. 3 You did not? A. No, sir, I never heard of that common law wife.


By Mr. Jones: X. r You have been supporting yourself ever since you

have been in Bristol. haven't you? A. Yes, sir. X. 2 Working at different things?


Minnie Greeri·

A. Yes, sir, different places - working at pripage I 5 8 ] vate homes and places.

X. 3 You have been doing that all the time since you came to Bristol. Isn't that so?

A. Yes, sir.

X. 4 And you were employed by Mr. Green to work down at the restaurant, weren't you?

A. Yes, sir, I was supposed to help him down there on the condition we was supposed to get married.

X. 5 You were supposed to help him there on the condition you were supposed to get married?

A. Yes, sir.

X. 6 You supported yourself all the time while you and he were engaged but before he died, didn't you?

A. Supported myself?

X. 7 Yes? A. No, he helped me after we was engaged at the cafe. X. 8 You mean you got some meals down there? A. Yes.

X. 9 You have been supporting yourself ever since he died?

A. X. A.

Yes. sir.

Io And you supported yourself before he died? Up until we was engaged I did.

X. I I And then when you were engaged didn't page 1 5 9 ] you keep on taking in washing?

A. No, sir, I didn't.

X. 12 After you were engaged-weren't you taking in washing when he took out this application?

A. I don't remember whether I was or not. I don't remember whether he taken it out before the cafe or after.

X. 13 He didn't buy the restaurant' until after the insur-ance was taken out?

A. I don't remember.

X. 14 You don't remember? A. No, sir.



By Mr. Scyphers: We would like to announce again the plaintiff rests.

Note: This was all the evidence introduced during the trial of this

case.

By Mr. Jones: We again demur to the evidence, your honor, on the same

grounds and for the same reason assigned in the original demurrer to the evidence.

By Mr. Scyphers: To that demurrer plaintiff renews her joinder that has

heretofore been filed, and which was allowed to be withdrawn for the purpose of introducing this testimony.

By the Court: page 160 ] I think the form of the verdict better be given to

the jury.

Note: The typewritten form of verdict, as dictated by counsel,

was given to the jury.

By the Court: Gentlemen you may take the case, the form of verdict is

written out for you.

By Mr. Scyphers: Havel you explained to them all they have to do is to sign

that, the foreman sign it.

By the Court: I am not going to explain anything gentlemen, other than

what I have told them.

By Mr. Jones: We object to the statement of counsel for plaintiff.

WHEREUPON, the jury retired to its room to consider of its verdict, and after sometime returned into open court having found the following verdict:

"We, the jury, find for the plaintiff in the amount of $300


subject to the opinion of the court on the demurrer to the evidence.

A Copy Teste:

W. G. FARRIS, Foreman.''

J.M. KELLY Deputy Clerk

130 Sur.,reme Court of Appeals of Virginia

- INDEXTORECORD -Page

Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Original Notice of Motion for Judgment . . . . . . . . . . . . 3 8 Amended Notice of Motion for Judgment . . . . . . . . . . . . 3 9 Defendant's Plea of the General Issue . . . . . . . . . . . . . . 40

EVIDENCE

Minnie Green . . . . . . . . . . . . . . . . . 48- 115- 120- 126 Plaintiff's Exhibit No. I-Policy ..... : . . . . . . . . . . . . 48 Willie Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Jumbo Lyons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81-119 Jo Ella Thomas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 B. G. Wagar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Defendant's Exhibit No. I-Application . . . . . . . . . . . . 93 E. F. Willis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Defendant's Exhibit No. 2-Death Certificate . . . . . . . . 11 1 Defendant's Exhibit No. 3-Certificate of Beneficiary . . 1 1 7

Defendant's Demurrer to the Evidence . . . . . . . . . . . . . . 121 Plaintiff's Joinder ................ ·. . . . . . . . . . . . . I 2 3 Verdict of the Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 Written Opinion of the Court . . . . . . . . . . . . . . . . . . . . 40 Notice of Presentation of Certificate of Exceptions . . . . . . 4 3 Notice for Transcript of Record . . . . . . . . . . . . . . . . . . . 43 Stipulation of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Final Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40-42 Appeal Bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Court's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Clerk's Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . 44-46 Judge's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

1~9-)')9 record no. 2554

Documents