Beard v. Royal Neighbors of America

• Decision Date: 19 January 1909
• Citation: 99 P. 83,53 Or. 102
• Parties: BEARD v. ROYAL NEIGHBORS OF AMERICA.
• Court: Oregon Supreme Court

99 P. 83

53 Or. 102

BEARD v. ROYAL NEIGHBORS OF AMERICA.

Supreme Court of Oregon

January 19, 1909

Appeal from Circuit Court, Douglas County: J.W. Hamilton, Judge.

Action by Frank M. Beard against the Royal Neighbors of America on a benefit certificate. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

This is an action to recover the amount of a benefit certificate issued by the defendant association to Nancy C. Beard, wife of plaintiff. Application for issuance of the certificate was made August 22, 1903, and the certificate was issued to, and received and accepted by, the insured on November 13, 1903. By its terms it was issued and accepted upon certain warranties, conditions, and agreements therein expressed, to the general effect: (1) That the application and medical examination are a part of the contract, and that the literal truth of such application, and each and every part thereof shall be held to be a strict warranty, and to form the only basis of the liability of the society to the member applying for the benefit, and to the beneficiary, the same as if fully set forth in the certificate; (2) that should said application, and each and every part thereof, not be literally true, then the certificate as to the member or beneficiary shall be null and void; (3) that the certificate was issued in consideration of the warranties and agreements made in the application; and (4) that if the application shall be found in any respect untrue, then the certificate shall be void and all rights under it forfeited. Nancy C Beard died June 8, 1905, and proof thereof was made to the defendant on June 9, 1905, by Frank M. Beard, the beneficiary named in the certificate, who demanded payment of the amount therein specified, and, the company failing to pay, he brought this action to recover the same. The answer denies generally all of the material averments of the complaint except that it expressly admits the issuance of the certificate and the terms thereof, as stated in the complaint; that plaintiff is named therein as the beneficiary; that due and timely proofs of the death of Mrs Beard were made and furnished to the defendant, but the defendant denied any and all liability to plaintiff by reason of the certificate. As an affirmative defense there are set forth the terms of the application, which are in part to the general effect that the applicant agreed that the application should be the sole basis of her admission to the order, and of the benefit certificate to be issued, and that any untrue statement or answer made in the application or to the examining physician, or any concealment of facts, intentional or otherwise, should forfeit her rights, and that of her beneficiary, to any and all benefits therein. It also contains this provision: "That I have verified each of the foregoing answers and statements, numbered from 1 to 33, both inclusive, and adopt them as my own, whether written by me or not, and declare and warrant that they are full, complete, and literally true, and I agree that the exact truth of each shall be a condition precedent to any binding contract." There are then set forth a number of interrogatories contained in the application and the answers made thereto by Mrs. Beard, among which are these: "(18) Have you within the last seven years consulted any person, physician, or physicians in regard to personal ailment? No. If so, give dates, ailment, length of illness, and person, physician or physician's name and address"--and "(25) Have you ever had any *** of the following diseases *** la grippe? No." It is then averred that each of these answers is untrue, in that she had had la grippe, and that within seven years preceding the date of her application she had consulted a physician in regard to a personal ailment. The affirmative matter of the answer was denied by the reply. The cause being at issue, a trial was had before a jury. At the close of the taking of testimony defendant moved for a directed verdict in its favor, which was denied by the court. A verdict for plaintiff having been returned, judgment thereon was accordingly entered, from which defendant has appealed.

A.N. Orcutt, for appellant.

John T. Long and W.W. Cardwell, for respondent.

SLATER C. (after stating the facts as above).

The motion for a directed verdict is based upon the averment that the answer given by Mrs. Beard to the eighteenth interrogatory, contained in her application, was not true, and that the evidence conclusively shows that she had consulted a physician regarding a personal ailment within seven years prior to making such answer. The proof on the part of the defendant consisted, first, of an offer of the application, which showed a negative answer to that inquiry, the genuineness of the signature of Mrs. Beard thereto being admitted by plaintiff when called upon by defendant to testify in regard to that matter; and, second, of an offer of the proofs of death, which it is claimed contain an admission against plaintiff's interest to the effect that the answer given by Mrs. Beard to the eighteenth interrogatory was not in fact true. The proof consisted in part of an affidavit, made on June 26, 1905, by Dr. K.L. Miller, who, it appears therefrom, attended Mrs. Beard in her last illness, in which he stated that she died of tuberculosis, the predisposing cause of which he did not know. But he stated that following an attack of la grippe she had a hacking cough; that he had been the medical attendant or adviser of the deceased for three years, and had treated her two or three years prior thereto, for four or five days, for the disease called "la grippe." Further, to explain his attendance upon deceased as her physician, Dr. Miller testified in person, at the instance of defendant, that he was by profession a physician and surgeon, and had practiced his profession at Roseburg since 1882, and was acquainted with the deceased during her lifetime. In answer to the question whether or not he was ever consulted by Nancy C. Beard in her lifetime as a physician and surgeon he stated that he was called to see Mrs. Beard early in the fall of 1902; that from the symptoms he discovered at the time he considered it a mild case of la grippe; that he gave her one prescription, and never saw her any more during that sickness. On cross-examination he stated that at that time (1902) he was requested to attend upon deceased by her husband, the plaintiff, and in response to the following cross-interrogatory: "She never consulted you at all; you were sent there by her husband?"--he replied, "Of course she consulted me after I got there, so far as she had anything to do with it." In response to further interrogation, he stated that he informed the patient that her trouble was "just the la grippe in a mild form"; the symptoms being a cold in the head, accompanied with pain in the limbs and head.

An attempt was made by counsel to have the witness declare that the ailment of Mrs. Beard, for which she was then treated was "what ordinarily would be called a bad cold," but the witness replied, "Well, of late years we term it ...