Sovereign Camp Woodmen of the World v. Lillard

• Decision Date: 17 June 1914
• Docket Number: (No. 5384.)
• Citation: 174 S.W. 619
• Parties: SOVEREIGN CAMP WOODMEN OF THE WORLD v. LILLARD et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

174 S.W. 619

SOVEREIGN CAMP WOODMEN OF THE WORLD v. LILLARD et al.^†

(No. 5384.)

Court of Civil Appeals of Texas. Austin.

June 17, 1914.

Rehearing Denied February 24, 1915.

Appeal from District Court, Hamilton County; J. H. Arnold, Judge.

Action by J. W. Lillard and another against the Sovereign Camp Woodmen of the World. From a judgment for plaintiffs, defendant appeals. Reversed and rendered.

Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, for appellant. Eidson & Eidson, of Hamilton, for appellees.

RICE, J.

On the 22d day of August, 1910, appellant issued to E. P. Lillard, now deceased, a certificate of insurance for $2,000; his mother, Mrs. W. A. Lillard, being named as beneficiary therein. He died on the 10th day of April, 1912, at which time he had paid all dues, assessments, etc., and was a member in good standing in said order. Proofs of death having been made, and refusal of payment on the part of appellant, this suit was brought by his mother, joined by his father, J. W. Lillard, to recover the amount named in said certificate.

The appellant based its defense chiefly on the contention that E. P. Lillard, the deceased, in his application, made certain statements which he warranted to be true, and upon the faith of which the appellant acted in issuing the certificate, all of which it is alleged were material to the risk. These were: First, that he had never had fits or convulsions or any other disease or injury; second, that he had not consulted or been attended by a physician for any disease during the past five years; and, third, that he did not drink wine, spirits, or malt liquors of any kind or in any quantity — all of which statements were alleged to be untrue, and known by the insured to be so at the time he made them.

Appellees contend, however, that neither they nor the insured were bound by said statements, because the physician who made the examination of deceased failed to ask him any of the above questions, but wrote the answers thereto himself in said application and he (deceased) signed said application in ignorance of its contents, never having read it over, and was therefore not bound thereby. Besides, appellees allege that said physician was the camp physician and agent of appellant, for which reason it waived such defense, and was estopped to urge it.

There was a trial before the court without a jury, resulting in a judgment in favor of appellees in the sum of $1,500, from which this appeal is prosecuted.

The first four assignments question the correctness of the judgment on the ground, that by the express terms of the beneficiary certificate, it was provided that it should be forfeited in the event any of the statements and declarations contained in the application for membership, and upon the faith of which the certificate was issued, were shown to be untrue. The deceased was solicited to become a member of the Woodmen of the World, and, a formal application for such admission having been favorably considered by the local camp, he, together with a friend, one Hammack, went to the office of the local camp physician for examination, but found him absent. They then sought a private practitioner, who made the examination for him and wrote out the answers to the questions and certified to their correctness, after which the deceased, though above average intelligence, and able to read and write, signed same without reading it. The other questions in the application, relating to the age of the parents and grandparents of the deceased, were read over to him, and his answers thereto written down; and, while there is some conflict in the evidence as to whether or not the second question above set out was read over to the insured before his answer thereto was written down by the physician, there seems to be none as to the other two questions, it appearing that the answers thereto were made by the physician himself, without reading them over to the insured. There was testimony to the effect that this physician had been previously applied to by Hammack to know whether or not deceased could pass the examination, on the ground that it was generally known that he had had epileptic fits, and the physician assured Hammack that, if he made the examination, deceased would get through. This, however, was denied by the physician, but the court found that, while said physician may not have known of Lillard's condition from having seen him have a fit, yet that he had heard and knew of the same by general repute.

The proof establishes beyond controversy that, for a number of years prior to this examination, Lillard had indulged in drinking intoxicating liquors; that he had had and was subject to epileptic fits; and that he had consulted a physician within less than five years from the date of such examination relative to such disease, who had advised him that he had epileptic fits, and that he should quit drinking, so that the answers to each of said questions were shown to have been untrue. The Sovereign Physician of appellant testified that no certificate could be issued by said order until he had approved the application therefor; that he did approve and pass upon the application of E. P. Lillard; that, if said application had contained the answer "Yes" to either of the questions above set out, he would not have approved the application or authorized the issuance of the certificate. It was shown that Lillard during the examination observed the physician in writing down and filling out the blanks, and writing the answers to the questions above set out. Over the signature to his application was the following:

"I hereby certify, agree and warrant that all the statements, representations and answers in this application, consisting of two pages, as aforesaid, are full, complete and true, whether written by my own hand or not."

The beneficiary certificate sued upon specifically referred to the application, and contained the following statement:

"If any of the statements or declarations in the application for membership, and upon the faith of which this certificate was issued, shall be found in any respect untrue, this certificate shall be null and void, and of no effect, and all money which shall have been paid, and all rights and benefits which have accrued on account of the certificate, shall be absolutely forfeited without notice or service."

It also provided that the constitution and laws of the order should be part of the contract. The constitution and laws of the order, among other things, provided:

"Sec. 26a. Applications must be approved by the Sovereign Physician before the beneficiary certificate shall be issued, and he shall have power to determine the amount of benefits. Applications that bear evidence of irregularities or indicate physical unsoundness shall be rejected."

Section 60: "This certificate is issued in consideration of the representation, warranties and agreements made by the person named herein in his application to become a member," etc.

The application likewise contains the following provisions:

"I agree that any untrue statements or answers made by me in this application or to the examining physician, or any concealment of facts in this application or to the examining physician, intentionally or otherwise, * * * or if I fail to comply with the laws, rules and usages of the order now in force or hereafter adopted, my beneficiary certificate shall become void, and all rights of any person or persons thereunder shall be forfeited."

It appears that, while Lillard did not request to see or read the application or paper from which said physician propounded the questions to him at the time he examined him, no one prevented him from doing so; nor was the application falsely read, or any misstatements as to its contents made to him by the physician, or any one else, before his signing same.

The law seems to be settled in this state that, under the circumstances disclosed by this record, the court erred in rendering judgment against appellant. The statements in the application were material, and without which the risk would not have been assumed by the order. See Prætorians v. Holmig, 100 Tex. 623, 103 S. W. 477; Id., 105 S. W. 846; Security Mut. Co. v. Calvert, 39 Tex. Civ. App. 382, 87 S. W. 899; Equitable Life Ins. Co. v. Hazlewood, 75 Tex. 338, 12 S. W. 621, 7 L. R. A. 217, 16 Am. St. Rep. 893; Scottish Union Ins. Co. v. Wade, 127 S. W. 1186; Supreme Ruling Mystic Circle v. Hansen, 153 S. W. 351; Supreme Council v. Gambati, 29 Tex. Civ. App. 80, 69 S. W. 114; Supreme Lodge v. Payne, 101 Tex. 449, 108 S. W. 1160, 15 L. R. A. (N. S.) 1277; Ætna Ins. Co. v. Holcomb, 89 Tex. 404, 34 S. W. 915; Guinn v. Insurance Co., 31 S. W. 566; Morrison v. Insurance Co., 69 Tex. 353, 6 S. W. 605, 5 Am. St. Rep. 63; Fitzmaurice v. Mutual Life, 84 Tex. 61, 19 S. W. 301; Delaware Ins. Co. v. Harris, 26 Tex. Civ. App. 537, 64 S. W. 867; Ash v. Fidelity Mutual, 26 Tex. Civ. App. 501, 63 S. W. 944; Sovereign Camp W. O. W. v. Gray, 26 Tex. Civ. App. 457, 64 S. W. 801.

In Equitable Life Ins. Co. v. Hazlewood, supra, it was held that one warranting statements in the application to be true, whether written by himself or not, is bound by a false statement written by another in such application, and such statement, if shown to be false, avoids the...