Baumgart v. Modern Woodmen of Am.

• Decision Date: 21 June 1893
• Citation: 55 N.W. 713,85 Wis. 546
• Parties: BAUMGART ET AL. v. MODERN WOODMEN OF AMERICA.
• Court: Wisconsin Supreme Court

85 Wis. 546

55 N.W. 713

BAUMGART ET AL.

v.MODERN WOODMEN OF AMERICA.

Supreme Court of Wisconsin.

June 21, 1893.

Appeal from circuit court, Rock county; John R. Bennett, Judge.

Action by Cynthia Baumgart and others against the Modern Woodmen of America. From a judgment for plaintiffs, defendant appeals. Reversed.Silas W. Menzie, (C. T. Heydecker and J. C. Johnson, of counsel,) for appellant.

J. G. Wickhem, J. B. Dow, and Smith & Pierce, for respondents.

LYON, C. J.

This action is upon a benefit certificate for $2,000, alleged to have been issued by the defendant corporation (a benevolent fraternity) upon the lfe of one August Baumgart, payable at his death to his widow and children, who are the plaintiffs in this action. He joined the defendant fraternity January 13, 1891; was taken sick two days later; and died February 7, 1891, of pneumonia. The cause was tried before the court without a jury. Plaintiffs recovered, and defendant appealed from the judgment against it for the sum specified in the certificate.

The performance by the deceased, August Baumgart, of conditions precedent to the right of plaintiffs to recover is denied in the answer of the defendant, and facts are alleged therein which, if true, render such benefit certificate invalid for several reasons. Only one of these allegations requires notice, for such allegation is conclusively proved, and, for reasons which will be briefly stated, is fatal to a recovery in the action. None of the other grounds upon which the validity of the certificate is challenged will be determined. The foundation of the alleged contract of insurance sought to be enforced in this action is an application in writing by the deceased, Baumgart, for membership in the defendant corporation and fraternity, and for benefits upon his life, payable to the plaintiffs. Such application is written on a blank prescribed and furnished by the fraternity in accordance with its authorized rules and regulations, and contains the following question: “Have you ever had any of the following disorders or diseases? If so, state when. Give name of physician who treated you for same.” Then follows a list of 37 diseases. Among them is piles. The deceased answered the above questions categorically, as to each one of the diseases named, “No;” that is to say, he expressly and positively represented and stated to defendant that he never had piles, or any other of the 37 diseases named. He also stipulated with defendant, in writing, in respect to such application and answers, as follows: “I agree that said answers and statements form the exclusive and only basis of my application for a benefit certificate, and I agree that the truth of said answers and statements, and each of them, is material...