Abernathy v. Springfield Mut. Ass'n

• Decision Date: 04 May 1926
• Docket Number: No. 18923.,18923.
• Parties: ABERNATHY v. SPRINGFIELD MUT. ASS'N.
• Court: Missouri Court of Appeals

284 S.W. 198

ABERNATHY v. SPRINGFIELD MUT. ASS'N.

No. 18923.

St. Louis Court of Appeals. Missouri.

May 4, 1926.

Appeal from Circuit Court, Madison County; Peter H. Huck, Judge.

"Not to be officially published."

Action by Etta Abernathy against the Springfield Mutual Association. Judgment for plaintiff, and defendant appeals. Reversed.

E. D. Anthony, of Fredericktown, and Haymes & Dickey, of Springfield, for appellant.

Davis & Damron, of Fredericktown, and Wm. M. Morgan and Homer F. Williams, both of Marble Hill, for respondent.

SUTTON, C.

This is an action on a policy of insurance issued by defendant on the life of Adolph Randolph. The cause was tried to a jury, there was a verdict and judgment in favor of plaintiff for the sum of $560, and the defendant appeals.

The policy sued on was issued on January 4, 1922, and provides as follows:

"It is hereby certified that the Springfield Mutual Association, of Springfield, Mo., in consideration of the application of Adolph Randolph, whose address is Zalma, state of Missouri, to the Springfield Mutual Association, which application, together with the constitution and by-laws of this association, shall be taken and construed as a part of this agreement, within 90 days after the receipt at the home office of the association at Springfield, Mo., of satisfactory proof of the death of said applicant, will pay, on conditions hereinafter named, to Etta Abernathy, whose address is Zalma, Mo., the sums of money as hereinafter set forth:

"Should the death of applicant occur within the first 10 months after the date of delivery and acceptance of this policy, the sum of $400; the amount of the payment thereafter to increase-each month by the sum of $40 for and during the term of 40 months, when this policy shall reach its maximum amount of $2,000 at the expiration of 50 months from the date of the delivery thereof, upon the condition, however, that prompt and full payment by the policy holder be made to the Springfield Mutual Association at its office in Springfield, Mo., of any and all assessments that may become due thereon pursuant to the provisions of the application for this policy and the by-laws of this association, and provided further that the holder of this policy shall have fully complied with all the conditions and agreements contained in his application, and in this certificate, and in the by-laws and articles of agreement of the Springfield Mutual Association."

An application for the policy was made to defendant on December 31, 1921, as follows:

"The undersigned hereby applies to the Springfield Mutual Association, Springfield, Mo., for a policy of insurance in same for a term of the full life of the member, payable at death of member to Etta Abernathy, whose relationship to the applicant is sister, and whose post office address is Zalma, state of Missouri, and to that end and as a basis of all liability under said policy, I hereby tender the following statements, answers and agreements:

"(1) Notice of assessments due from me on this policy and the policy itself shall be sent to Etta Abernathy, address Zalma, state of Missouri.

"(2) I hereby warrant and agree that I am now of sound body, mind, and health, and free from disease and injury.

"(3) Have you any of the following diseases: Kidney, No; stomach, No; liver, No; cancer, No; heart, No; rheumatism, No.; lung, No; dropsy, No; rupture, No; tuberculosis, No; bowel trouble, No; diabetes, No.; insanity, No; paralysis, No.; any other defect or ailment, No.

"I hereby warrant and agree that the foregoing statements and agreements and the foregoing answers to the foregoing questions are full, complete, and literally true, and that the literal truth of same shall be and is hereby made a condition precedent to any liability on any policy which may be issued to me by the Springfield Mutual Association, and I hereby tender said answers, agreements, and statements to the Springfield Mutual Association as a basis for the issuance to me by it of a policy of insurance.

"It is further agreed that this application shall be considered the basis of the contract for membership, and that, in case it is accepted, and the policy issued thereon, I agree to all of the by-laws, and regulations of the Springfield Mutual Association, and with all amendments thereto and governing the same, and that my rights and obligations shall be bought thereby.

"I hereby agree that this application is a part of the contract, and is a warranty by me, the applicant, of the truthfulness of all the answers and statements herein set forth. It is further expressly agreed by me that no agent of the Springfield Mutual Association and no other person has the authority to waive true answers in writing to any of these questions above set forth, and the Springfield Mutual Association shall not be bound by any act or statement to or by any agent or other person not contained and set forth in this application.

"Adolph Randolph, Applicant. "I, the undersigned, have signed the name of said applicant to the application, and in doing so vouch for .the truthfulness of all answers to the questions contained herein, and agree for the applicant to all conditions set forth in this application.

                                    "Adolph Randolph, Applicant
                                       "By Etta Abernathy."
                

The defendant is a mutual insurance company, organized and doing business on the assessment plan under the provisions of article 3, c. 50, Revised Statutes Missouri 1919 The following provisions of the defendant's constitution or charter were in force at the time the policy in suit was issued:

Section 5 of article 5 provides as follows:

"Any white or Caucasian person who believes in a Supreme Being, and who is in sound physical condition and of good moral character, and who is between the ages of 10 and 55 years, and who passes a medical examination, and pays the medical and admission fee and first assessment, as may be provided by the by-laws of this association, may be accepted as a member of said association and may become entitled to its benefits, provided he shall comply in all respects with the by-laws and articles of agreement of said association."

Section 1 of article 6 provides as follows:

"There shall be no liability by this association on any certificate issued by it until the delivery of said certificate to the member, while such member is in good health, and unless at the death or disability of such member he or she be in good standing in the association as set forth in its by-laws and constitution and articles of agreement."

Section 3 of article 1 of the defendant's by-laws, in force at the time the policy was issued, provides as follows:

"When an application is accepted by this association, and the membership fee and one assessment are paid, the association wilt issue to such applicant a certificate, but no liability shall arise thereon against the association, nor .any benefit be due to the applicant until the issuance of such certificate and its delivery to and acceptance by the applicant while such applicant is in good health."

The plaintiff produced testimony as follows:

Sherman Abernathy testified:

"I, reside at Zalma, Mo. The plaintiff in this case, Etta Abernathy, is my wife. On December 31, 1321, I was writing insurance for the Springfield Mutual Association of Springfield, Mo., as agent. I began working for the company about December 1st. Adolph Randolph was my wife's brother. He had been in the World War, and was overseas. A copy of the application for the policy sued on is inside the policy. My wife signed the application, and I took the application. My wife, Adolph, and myself were at my home when the application was made out and signed. My wife mentioned the application, and Adolph asked her if she wanted to take it out, and said that if she did and thought she could keep it up to take it out. Some one called him, and he asked her to sign his name to the application. Regarding his health, I knew of him making some complaint, and that he had applied for compensation from the government. knew that he had had temporary sickness, such as chills, headaches, and so on, and had fever. On December 31, 1921, he was not bedfast. He was working in his and his father's barber shop. A doctor was not treating him continuously. Dr. Kirkpatrick and Dr. Back of Zalma treated him some and gave him medicine. He looked like he weighed 150 pounds. I did not know that he was in the very worst of health and that he had heart and Iung and other troubles. I knew that he complained at times with his head, but, as to being in a real dangerous or serious condition, I did not know it. He was at my house when the application was written. He wasn't there but a little bit. He told my wife if she could and wanted to keep it up to go ahead and write the policy. I asked him some questions, and he asked me if she could sign the application. I asked him the questions in it. I filled out the application, and my wife signed his name to the application. He got back from the army the last of 1919 or the first of 1920. I knew he went to a soldier's hospital in St. Louis. I knew he stayed there some time and then came home, and that he then went to a soldier's hospital in Auten, N. C. He and I talked about it after he got back. He returned about six weeks before this application was written. I knew that, after he came back he had chills and fever and violent headaches, and that he was complaining. Even though I knew he had chills and fever and violent headaches, I answered `No' to the question, `Have you any other defect or ailment?' because he said `No.' He said 'No' to everything else. I put `No' down, although I knew he was sick."

Plaintiff testified:

"I am thirty-three years old. Shermon Abernathy is my husband. Adolph Randolph was my brother. Adolph was 28 years old when he died, March 25, 1923. My husband, my brother, and myself were present when the application...