Adams v. Modern Woodmen of America
| Decision Date | 06 June 1910 |
| Citation | 130 S.W. 113,145 Mo.App. 207 |
| Parties | STELLA ADAMS, Respondent, v. MODERN WOODMEN OF AMERICA, Appellant. CARY D. CREWS, Respondent, v. MODERN WOODMEN OF AMERICA, Appellant. S. E. ADAMS, Administrator of the Estate of DAVID ARTHUR CREWS, Deceased, Respondent, v. MODERN WOODMEN OF AMERICA, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Randolph Circuit Court.--Hon. A. H. Waller, Judge.
Judgment affirmed.
Benjamin D. Smith, Barbour & McDavid and Charles K. Hart for appellant.
(1) Where, as in this case, the undisputed evidence disclosed that numerous answers in his application for membership were false and untrue, it became the duty of the trial court to direct a verdict for the defendant; and the trial court having refused to so direct the jury, the appellate court will on appeal, reverse said judgment. Reichenbach v Ellerbe, 115 Mo. 588; Asphalt Co. v. Transit Co., 102 Mo.App. 476; Fuchs v. St. Louis, 167 Mo. 631; Lavin v. Grand Lodge, 104 Mo.App. 1; Carroll v. Rapid Transit Co., 107 Mo. 653. (2) Where a verdict can be accounted for only on the ground of ignorance, partiality, prejudice, or passion, it will not be permitted to stand. Lang v. Moon, 107 Mo. 334; Caruth v. Richerson, 96 Mo. 186; Avery v Fitzgerald, 94 Mo. 207; Garrett v. Greenwell, 92 Mo. 120; Spohn v. Railroad Co., 87 Mo. 74; Whitsett v. Ransom, 79 Mo. 258. (3) A verdict based upon conjecture or mere possibility cannot be permitted to stand. Sovereign Camp v. Haller, 24 Ind.App. 108; Sovereign Camp v. Hruby, 96 N.W. 998; Agen v. Metropolitan, etc., Co., 80 N.W. 1020; Leisenberg v. State, 84 N.W. 6; Supreme Lodge v. Fletcher, 29 S. 523; Zearfoss v. Switchmen's Union, 112 N.W. 74. (4) If but one natural and rational inference can be drawn from the undisputed facts, it is the duty of the court to treat the matter in question as one of law and direct the proper verdict. Hardinger v. Modern Brotherhood, 103 N.W. 74; Somerville v. Knights Templar, 11 App. D. C. 417; White v. Insurance Co., 105 N.Y.S. 87; Sovereign Camp v. Hruby, 96 N.W. 998; Clemens v. Royal Neighbors, 103 N.W. 402; Pagett v. Connecticut, etc., Co., 66 N.Y.S. 804; Seybold v. Sovereign Tent, 83 N.Y.S. 149; John v. Northwestern, etc., Assn., 63 N.W. 276. (5) While an appellate court does not interfere with the weight of testimony in law cases, yet it has been the uniform practice to interfere where no substantial testimony supports the verdict, and this has been done very often where no instructions were asked. Graney v. Railroad, 157 Mo. 680; Lehnick v. Railroad, 118 Mo.App. 616; Hite v. Railroad, 130 Mo. 141; Jackson v. Hardin, 83 Mo. 186; Reichenbach v. Ellerbe, 115 Mo. 588; State to use v. O'Neal, 151 Mo. 89.
W. P. Cave and M. J. Lilly for respondents.
--The above entitled suits were begun in the circuit court as separate actions, but all are founded on a benefit certificate issued by defendant, a Fraternal Beneficiary Society and before trial were consolidated, by agreement of parties and, afterwards, tried as one case.
January 5, 1906, Willie Thomas Crews made application to become a member of defendant's lodge at Moberly and for a death benefit certificate of $ 2000. He was duly admitted and on January 29, 1906, the certificate in suit was issued to him. He was twenty-one years old at the time and was unmarried. The beneficiaries named in the certificate were Stella Adams, a sister, and Cary D. Crews and David Arthur Crews, brothers. The application, which was in writing and signed by the applicant, contained a number of questions and answers, among them the following:
To which the applicant answered, "No."
Answered. "No."
etc. Answered, "Yes."
Answered, "No."
Answered, "Yes." . . . Answered, "Use only for medicine."
Answered, "No." "Spitting blood or other hemorrhage?" Answered, "No."
Since plaintiffs concede in their brief "that the answers contained in the application for insurance are warranties and that the insured is bound by the by-laws of the insurance society in this case," and further admit that defendant is a fraternal beneficiary society authorized to do business in this State, the scope of our inquiry under the contention of defendant that its demurrer to the evidence should have been sustained, is restricted to the question of whether or not we should hold, as a matter of law, that the applicant falsely answered the questions we have quoted. The trial court treated that question as an issue of fact and submitted it to the jury in instructions appropriate to that theory. Counsel for defendant insist that the evidence, considered from any viewpoint, indisputably establishes the falsity of the answers, while counsel for plaintiffs argue that the evidence will support a reasonable inference that the answers were true. In solving this issue, which is simple and closely drawn by the admissions and arguments of counsel, we begin with the presumption of right acting on the part of the applicant and cast the burden on defendant to plead and prove the falsity of the answers which, being warranties, became an integral part of the contract of insurance.
The evidence which defendant says conclusively establishes its defense thus may be stated: The young man died of consumption at Clark, Missouri, November 11, 1907, a year and ten months after he received the benefit certificate. He was not of sound body at the time he made the application for membership and insurance, but was afflicted with tuberculosis which had attacked one of his lungs. A physician, Dr. Taylor Mangas, testified that in 1903 and 1904, he was practicing his profession at Clark, Mo.; that young Crews who was living there was examined by him and found to be tubercular; that he treated the patient for that disease and finally, on his advice, the patient went to Colorado to seek benefit from a change of climate. After a time, Crews returned and was examined by witness who discovered that the disease had made progress. All of this occurred before Crews applied to defendant for the benefit certificate. Witnesses living in Colorado testified by deposition that Crews came to that State with his brother in the summer of 1905 and lived there; that he stated he was afflicted with consumption and had come in the hope of restoration to health; that he was too weak and run down to work and that he had a hemorrhage there.
This evidence very strongly tended to prove the falsity of the answers to the 14th, 15th, 16th and 33rd questions. Plaintiffs introduced as a witness the mother of young Crews who testified that her son was living at home when he applied to defendant for insurance and that she had "never heard any complaint as to his health." She was cross-examined as follows:
Other witnesses who knew the applicant at Clark testified that he was in good health until a few months before his death and that he went to Colorado in 1905, not on account of his health, but to find employment. A druggist at Clark by whom Crews had been employed as clerk was a positive witness for plaintiffs on these points. The physician...
To continue reading
Request your trial