Claver v. Woodmen of World

• Citation: 133 S.W. 153,152 Mo.App. 155
• Parties: ETHEL N. CLAVER AND METTA B. CLAVER, an infant, by her next friend, Defendant in Error, v. WOODMEN OF THE WORLD, Plaintiff in Error
• Decision Date: 02 January 1911
• Court: Court of Appeals of Kansas

133 S.W. 153

152 Mo.App. 155

ETHEL N. CLAVER AND METTA B. CLAVER, an infant, by her next friend, Defendant in Error, v. WOODMEN OF THE WORLD, Plaintiff in Error

Court of Appeals of Missouri, Kansas City

January 2, 1911

Error to Buchanan Circuit Court.--Hon. C. A. Mosman, Judge.

AFFIRMED.

Judgment affirmed.

B. J Casteel for plaintiff in error.

(1) It stands admitted that defendant is a fraternal beneficiary association, organized in Nebraska, and doing business. at the time it issued the certificate sued on, in Missouri, as an assessment insurance company, within the meaning of article 3, chapter 119, Revised Statutes of Missouri, 1899 and not governed by the general insurance law of the state. Hanford v. Mass. Ben. Assn., 122 Mo. 50; Aloe v Life Assn., 147 Mo. 561; McDermott v. Modern Woodmen of Am., 97 Mo.App. 636. (2) Instruction No. 1, given for plaintiff, is wrong for two reasons: 1st, It wholly disregards the defense of insanity. 2d, While it cautions the jury not to speculate as to whether he did die by his own hand, but strongly intimates that they might speculate as to whether he did not die by his own hand. In other words, it casts too great a burden on the defendant to prove suicide. (3) The court erred in refusing to give the jury instructions numbered 4 and 5, asked by defendant. The giving of instruction No. 1 for the plaintiffs and refusing to give instructions 4 and 5 asked by defendant, took away from the jury the defense of insanity. That Claver's mother was insane when he made application for the beneficiary certificate sued on, there can be no doubt, nor is there even a denial. But plaintiffs contend that it not appearing that the insanity was hereditary, there was no breach of the warranty. Not conceding the claim of plaintiffs, except for the argument, what is the logical situation, when she is proved insane? Is the burden on defendant to show that the insanity is hereditary, or on plaintiffs to show that it was not? At any rate, should not the jury have passed upon it? Whatever kind of insanity is referred to in the application, hereditary or not, defendant claims that its answer denies the truthfulness of John B. Claver's answer, when he said that none of his parents, etc., suffered from insanity. That answer being a warranty of its truthfulness, the burden vested with plaintiffs to show that it was true. It is like a condition precedent in a contract, the burden is on plaintiffs. Sec. 634, R. S. 1899; Walker v. Phoenix So., 62 Mo.App. 224; Maddox v. Ins. Co., 56 Mo.App. 343; Halloway v. Ins. Co., 48 Mo.App. 5; Life Ins. Co. v. Johnston, 80 Ala. 467; Edgerly v. Farmers' Ins., 43 Iowa 587, and cases above cited. (4) The case of Northwestern Mut. Life Ins. Co. v. Gridley, 100 U.S. 614, 617, is not in point, and to see the distinction, one only has to read the case of The First Nat. Bk. of Kansas City v. The Hartford Fire Ins. Co., 95 U.S. 673, 679. (5) A new trial should have been granted on the newly discovered evidence, as it discloses such a condition of taint in the blood of Claver's ancestors, that had those facts been known, no certificate would have been issued to him. The testimony was not cumulative; it was not known to defendant at the time of trial; defendant was not guilty of negligence in not having the testimony at the trial; it would have controlled the verdict, and in fact all the conditions necessary to grant a new trial on newly discovered evidence exists. Langdon v. Kelly, 51 Mo.App. 572.

Brewster, Ferrell & Mayer for defendant in error.

(1) Plaintiff's instruction No. 1 correctly submitted the question of suicide. The instruction simply placed the burden upon defendant, where it belonged. The instruction was not as favorable to plaintiffs as plaintiffs were entitled to. Almond v. Modern Woodmen of America, 133 Mo.App. 382. (2) There was no error in the court's refusal to submit the question of insanity. The burden of proving the untruthfulness of the assured's answer was upon defendant. The negative answer of the assured was not untrue, unless the mother's insanity was hereditary. The assured was not asked if his mother was insane, but he was asked if she had suffered from hereditary insanity. There was not a scintilla of evidence that the mother's insanity was hereditary, and therefore no evidence of the untruthfulness of the assured's answer. Gridley v. Life Ins. Co., 11 F. Cas., p. 2. The case was affirmed by the U. S. Supreme Court, 100 U.S. 614, 25 L.Ed. 746. Sinclair v. Life Ins. Co., 22 F. Cas., p. 195. The case of National Bank of Kansas City v. The Hartford Insurance Company, 95 U.S. 673, cited by appellant as destroying the effect of the above cases, has no bearing upon them or upon the case at bar, except that the last paragraph of the opinion in the case cited by appellant seems to strengthen respondent's contention. The paragraph is as follows: "It is its (the company's) language which the court is invited to interpret, and it is both reasonable and just that its own words should be construed most strongly against itself." (3) The appellant's contention that the burden of proving the truthfulness of the assured's answer was upon plaintiffs' is unsound, and contrary to the theory upon which the appellant tried the case below. The court committed no error in refusing to grant a new trial on the affidavit of newly discovered evidence. Cook v. Railroad, 56 Mo. 380; Coleman v. Cole, 96 Mo.App. 22. The newly discovered evidence, according to the affidavit, was to come from the lips of a witness who had testified for defendant. He was unfriendly to the plaintiffs. He was examined as a witness at great length by defendant's counsel. The alleged newly discovered evidence does not touch any issue raised by the pleadings. There were but two issues under the pleadings, namely; did assured commit suicide and had his mother suffered from hereditary insanity. The affidavit of newly discovered evidence shows conclusively that nothing appellant claims to have discovered throws any light on either of these issues.

OPINION

JOHNSON, J.

This suit is on a death benefit certificate issued to John B. Claver, November 30, 1907, by defendant, a foreign fraternal beneficiary society duly authorized to transact business in this state. The assured died in St. Joseph, July 5, 1908, and defendant denied liability on two grounds, viz.: First, a breach of warranty in the answer of the assured to a question in the application and, second, the suicide of the assured in violation of the terms of the certificate. A trial to a jury resulted in a verdict and judgment for plaintiffs and the cause is before us on writ of error sued out by defendant.

The certificate stated that it was "issued in consideration of the representations, agreements and warranties made by the person named herein in his application to become a member" and the application signed by Claver contained the following warranties and agreements: "I hereby certify and agree and warrant that all the statements, representations and answers in this application . . . are full, complete and true. . . . I agree that in the event of my death by my own hand or act, whether I am at the time sane or insane, then my beneficiary certificate in said order shall be null and void and of no effect and all my rights and benefits which may have accrued on account thereof shall be absolutely forfeited." Among the questions and answers in the application are these: "Have any of your parents or grandparents, uncles or aunts been subject to consumption, cancer, gout, scrofula, insanity or any other hereditary disease, or committed suicide?" Answered, "No."

The fact is undisputed that in May, 1907, six months before the application for the certificate in question, the mother of the applicant was pronounced insane and sent to the state hospital at St. Joseph, where she died August 2, 1908. She was seventy-one years old and had been in good health until some ten weeks before her admission to the hospital. In that period she had suffered from typhoid fever, from a stroke of appoplexy and from a most severe stroke of paralysis. Evidently her dementia was caused by the ravages of these diseases on a body and mind afflicted by senile decay. There is no suggestion in the evidence that it was due in any degree to hereditary taint.

Facts in evidence pertinent to the issue of suicide thus may be stated: Claver drove a mail wagon for a morning newspaper published in St. Joseph and on the night of his death reported for duty at eleven o'clock p. m., the usual hour. He had been complaining of sickness at the stomach for two or three weeks and had been taking medicine. He looked like a sick man to the clerk in charge of the mailing room and at four o'clock he said he felt too ill to go out on the mail wagon and the mailing clerk went out in his place. The clerk testified:

"I left there to make the trip about twenty minutes past four o'clock. Returned shortly after six a. m. When I got back he was in the office which is in the basement. He was lying on a bench. He said, "I am sorry that you had to make that South St. Joseph trip for me. I don't want to go down there, it is all over now.' I finished up my reports. We started for home. I met him out in front of the office again. I went on; as we walked down the street he says: 'Mitchell, I was not drunk this morning.' I says, 'I know it--what is the matter with you anyway?' 'My stomach is bothering me.' 'Why do you not get a doctor?' 'I don't know that it would do anybody any good.' . . . I left Claver on Edmond street."

On cross-examination the witness said: "There was nothing unusual about Claver being in the basement. It was where the men worked that were employed by the Gazette. It was lighted. I walked down...