Valleroy v. Knights of Columbus

• Decision Date: 23 February 1909
• Citation: 116 S.W. 1130,135 Mo. App. 574
• Parties: VALLEROY v. KNIGHTS OF COLUMBUS.
• Court: Missouri Court of Appeals

116 S.W. 1130

135 Mo. App. 574

VALLEROY v. KNIGHTS OF COLUMBUS.

St. Louis Court of Appeals. Missouri.

February 23, 1909.

1. INSURANCE (§ 723) — FRATERNAL INSURANCE — WARRANTIES AS TO HEALTH.

Answers in an application for insurance in a fraternal benefit association, which under Rev. St. 1899, § 1408 (Ann. St. 1906, p. 1111), is not within the general insurance laws, as to the health of an insured, are warranties, and, if untrue, avoid the policy, whether the matters misrepresented contributed to the death or not.

2. INSURANCE (§ 712) — BENEFIT INSURANCE — CONSTRUCTION OF CONTRACT — FOREIGN LAWS.

In case of foreign fraternal benefit associations doing business in the state, the court may look to the laws of their home state for the effect to be given their contracts.

3. EVIDENCE (§ 210) — ADMISSIONS — FORM — DEPOSITION.

Though a deposition of a party to a suit may be excluded as the evidence of the party, where he is present in court, the deposition is admissible for the purpose of showing admissions or declarations by the party to the suit.

4. APPEAL AND ERROR (§ 971) — REVIEW — RECEPTION OF EVIDENCE — DISCRETION OF TRIAL COURT.

Where depositions of a physician were excluded by the court after careful inquiry as to whether the testimony was within the privilege, the ruling will not be revised on appeal.

5. APPEAL AND ERROR (§ 1177) — DETERMINATION OF CAUSE — NECESSITY OF REMAND.

Where, in an action on a life policy in a fraternal beneficial insurance association, the error of the court in instructing that untruthful answers to the application did not avoid the policy, unless the matters misrepresented contributed to the cause of death, is confessed on appeal, the cause must be remanded for new trial as the question of the falsity of the answers should be submitted to the jury.

Appeal from Circuit Court, Ste. Genevieve County; Chas. A. Killian, Judge.

Action by Grace Valleroy against the Knights of Columbus on an insurance policy. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

John M. Cleary and P. H. Huck, for appellant. T. B. Whitledge and C. J. Stanton, for respondent.

REYNOLDS, P. J.

This is an action upon an insurance membership certificate issued by the Knights of Columbus, through one of its subordinate councils, to Emil J. Valleroy, under which the appellant contracted to pay to Grace Valleroy, then the wife, now the widow, of Emil, upon the death of Emil, a sum not exceeding $2,000, "in accordance with and under the provisions of the laws of the Knights of Columbus governing such payments." The appellant is organized and incorporated as a fraternal beneficiary association under the laws of Connecticut, having subordinate councils in this state, of which the council of which Emil Valleroy was a member is one, and is now and in the years 1906 and 1907 was authorized to do business in this state. The defense relied on was that Valleroy had made false and untrue answers in his application for membership, and that such answers, constituting warranties, vitiated the contract of insurance set out in the membership certificate. The questions and answers counted on were set out in the answer upon which the case was tried, and are as follows: "No. 5. Have you ever had any severe illness? A. No. Q. Or injury? A. No. No. 6. Q. State when, give particulars, and name and address of your attending physician? A. ____. No. 9. Have you ever had any of the following diseases: (e) chronic or persistent cough or hoarseness or spitting or coughing of blood, asthma, shortness of breath or any chest or lung disease? A. No. No. 16. Are you now in sound health? A. Yes. No. 17. When were you last attended by a physician? A. 1904. Q. For what ailment? A. Bad cold. No. 21. Is there anything to your knowledge or belief in your physical condition, family, or personal...