Bednarek v. Brotherhood of American Yeomen

• Decision Date: 29 April 1916
• Docket Number: 2841
• Citation: 157 P. 884,48 Utah 67
• Court: Utah Supreme Court
• Parties: BEDNAREK v. BROTHERHOOD OF AMERICAN YEOMEN

157 P. 884

48 Utah 67

BEDNAREK v. BROTHERHOOD OF AMERICAN YEOMEN

No. 2841

Supreme Court of Utah

April 29, 1916

Appeal from District Court, Third District; Hon. F. C. Loofbourow Judge.

Action by Lillian Bednarek against the Brotherhood of American Yeomen, a corporation.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Scott &amp Hackett, for appellant.

APPELLANT'S POINTS.

Where the insured warrants the truthfulness of his answer in his application for insurance; the validity of the policy depends upon the truth of said answers, but if such answers, or any of them, are false, the policy is thereby rendered void whether the thing as denied in such application, contributed to the death of the insured or not. (E. H. of C. W. v. Pratter, 103 P. 558; Elliott v. K. of M. M., 56 Wash. 320, 324; Met. L. Ins. v. Brubaker, 78 Kan. 146, 96 P. 62; M. W. A. v. Owens, 130 S.W. 858; Collver v. M. W. A., 135 N.W. 67, 68; Pelican v. M. 1. Ons. Co., 119 P. 778, 781; Beard v. Royal Neighbors, 99 P. 83, 85, 86 (Oregon); Hosland v. W. U. L. Ins. Co., 107 P. 868, 867 (Wash.); Miller v. C. U. A. Co., 125 P. 782 (Wash.), 69 Wash. 529; Tobin v. M. W. A., 85 N.W. 472 (Mich.); McDermott v. M. W. A., 71 S.W. 833 (Mo.); Fraser v. Aetna, 90 N.W. 467 (Wis.); Jeffries v. Ins. Co., 89 U.S. 833; 99 P. 1096 (Oregon); 116 S.W. 1130 (Missouri) ; 159 Ill.App. 498.)

C. S. Varlan and M. E. Wilson, for respondent.

McCARTY, J. STRAUP, C. J., and FRICK, J., concur.

OPINION

STATEMENT OF FACTS.

Plaintiff brought this action to recover a death benefit provided for in a certificate of membership of the Brotherhood of American Yeomen, which certificate was issued by the association to one Leon Q. Bednarek. The benefit was made payable to the plaintiff, wife of Leon Q. Bednarek. The application upon which the certificate of membership was issued consisted, among other things, of questions printed on the application blank which were propounded to Leon Q. Bednarek by the association's examining physician, who wrote down the answers in blank spaces provided therefor in the application. Among the questions propounded, and the answers made thereto, contained in the application are the following:

"Question No. 8. Have you consulted a physician in the last ten years? Answer. No."

"Question No. 15. Have you had appendicitis? Answer. No."

"Question No. 17. Have you had any illness, ailment or injury not herein mentioned? (State particulars.) Answer. No."

The record shows that Bednarek had been operated on for appendicitis, and that about the year 1905 he had an attack of biliousness, "a little constipation;" consulted a physician who gave him a prescription for the ailment; that in March, 1911, he had an attack--"a mild case"--of tonsillitis. The application, a copy of which was attached to and made a part of the certificate of membership, contained the following provisions:

"I hereby * * * warrant all answers herein purporting to be mine are mine, and are full, complete, and true, without suppression, evasion, concealment, or mental reservation. * * * I agree that any untrue answer to any question on this application blank, or concealment, misrepresentation, or suppression, * * * shall immediately without process render the certificate issued hereon null and void. * * * I fully understand the meaning of all questions asked, * * * and have fully and completely, without evasion or mental reservation, answered each and every one as indicated, and warrant the answers to be true, and finally agree that, if not so answered as shown by the copy hereof on the certificate to be issued hereon, I will forfeit all right to any benefit provided therein, unless I promptly notify this association of such untrue answers as soon as I receive such certificate, or, failing to so notify, I agree that it shall be understood that such answers are full, complete, and true."

The application, after being filled out by the association's examining physician, as stated, was, on November 5, 1911, signed by Bednarek. The certificate of membership, which was delivered to Bednarek on or about November 14, 1911, contained, among other things, the following proviso:

"No action shall be maintained on this certificate, unless brought within one year from date of death * * * of said member, and not at all unless a board of arbitration * * * shall fail to settle same."

Bednarek died November 24, 1913. From the time he received his certificate of membership until his death he paid all dues, assessments, and premiums provided for in the certificate, and was, for aught that appears in this record, in good standing in the association. Proofs were duly made of the death of Bednarek on behalf of plaintiff, and payment demanded of the death benefit provided for in the certificate of membership. The association denied liability on its part and refused absolutely to pay the claim. The case was tried to a jury, who rendered a verdict for plaintiff in the sum of $ 1,542.99. To reverse the judgment entered on the verdict, defendant prosecutes this appeal.

McCARTY, J. (after stating the facts as above).

The defense in this action is based on the following grounds: (1) That plaintiff brought the action without first having submitted her claim to a board of arbitration, as provided in the certificate of membership; and (2) that the answers to questions Nos. 8, 15, and 17, which are set forth in the foregoing statement of the case, and which by the terms of the contract were made warranties, were false.

The record not only shows that defendant denied that it was under any obligation whatever to pay plaintiff the death benefit provided for in the certificate of membership, but it also shows that plaintiff, before commencing this action, requested of the defendant that the matter be submitted to a board of arbitration as provided in the certificate of membership, and that defendant failed and neglected to consent thereto. Under those circumstances plaintiff was under no obligation, legal or otherwise, to defendant, to further postpone the bringing of the action. May on Insurance, Sections 493 and 496; 4 Joyce on Insurance, Sections 3256, 3257; Moran v. Knights of Columbus, 46 Utah 397., 151 P. 353. This question was before this court in the case of Daniher v. Grand Lodge, A. O. U. W., 10 Utah 110, 37 P. 245. The third syllabus of that case correctly reflects the opinion on this point, and is as follows:

"Where the constitution and by-laws of an unincorporated association provide for the payment of a fixed sum on the death of each member, and create a board of arbitration to whom all claims against the association shall be submitted, and whose decision shall be final, held, that such provisions constitute merely a revocable agreement to arbitrate, and do not preclude resort to the courts, nor is such a submission to arbitration a condition precedent to the bringing of an action."

The defense that plaintiff is not entitled to recover because of the alleged false statements made by Bednarek and contained in his signed application upon which his certificate of membership in defendant's association was issued presents a question more difficult of solution. There is evidence tending to show that the physician, who examined Bednarek and wrote into the application the alleged false statements herein referred to, knew at the time that Bednarek had undergone an operation for appendicitis. Plaintiff testified that at the time the examination was made Bednarek carried a "dark brown scar raised above the abdomen," that the scar was about five inches long and "extended almost to the waist line," and that it was caused by the incision that was made in the operation for appendicitis. She further testified that, at the time the examination was being made and the application filled out, she was in a room adjoining the one in which the examination was being conducted; that the rooms were connected by an opening across which curtains--portieres--were hanging; that she heard Bednarek and the physician "discussing appendicitis", that the doctor said that the scar left by the incision was in a perfectly normal, healthy condition and there would be no further trouble; that there had been a number of people pass examinations who had been operated on for appendicitis. The physician's testimony was taken by deposition, which was read to the jury. He testified in part as follows:

"I examined Bednarek. * * * I know of no person so placed that they could overhear the conversation between myself and Bednarek at the time of such examination, as the doors in the room in which the examination took place were closed and locked. * * * I requested Bednarek to strip to the waist, and he did so, with the exception of a thin undershirt. I looked at the abdomen of said Bednarek, [and] I did not discover any scar or scars upon it. * * * Bednarek told me that he had never had appendicitis. * * * I was satisfied that all of such questions were answered by Bednarek truthfully and fully. * * * I cannot state positively whether I had any conversation with the said Bednarek in the presence of any other person. I do not recall any such conversation."

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