Brotherhood of American Yeomen v. Fordham

• Decision Date: 08 November 1915
• Docket Number: 221
• Citation: 180 S.W. 206,120 Ark. 605
• Parties: BROTHERHOOD OF AMERICAN YEOMEN v. FORDHAM
• Court: Arkansas Supreme Court

180 S.W. 206

120 Ark. 605

BROTHERHOOD OF AMERICAN YEOMEN v. FORDHAM

No. 221

Supreme Court of Arkansas

November 8, 1915

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; reversed.

STATEMENT BY THE COURT.

Mrs. H C. Fordham instituted this action against the Brotherhood of American Yeomen, a fraternal benefit society, to recover upon a benefit certificate issued by it to Arthur L. Fordham and payable to the plaintiff. The facts are as follows:

On the 4th day of March, 1911, Arthur L. Fordham, who then resided at Plainview, Arkansas, made application to the local representative of the Brotherhood of American Yeomen, of Des Moines, Iowa, for a benefit certificate in said association and was examined by the local medical examiner of the association. A benefit certificate in the sum of $ 2,000 was issued and delivered to him on the 13th day of March, 1911. The insurer was a fraternal society and the benefit certificate issued by it, which was the contract of insurance, expressly provided that the application of the member, including his answers in the medical examination should become a part of the insurance contract. A copy of the medical examination, including the questions asked by the medical examiner and the answers made by the insured appears upon the back of the benefit certificate, and is expressly made a part of the insurance contract and the answers are warranted to be true.

The insured was asked if he had consulted a physician during the past ten years, and answered that he had not. He was asked if he had ever had any disease of the heart, and answered that he had not. He was also asked if he had ever had any disease of the stomach and bowels, and answered that he had not.

It was proved at the trial that the insured had had a severe attack of typhoid fever in the latter part of the year 1905 while he resided at Malvern, Arkansas, and that two physicians and two nurses were in attendance upon him daily for a period of about six weeks, that he apparently made a good recovery. That typhoid fever is a disease of the stomach and bowels. That heart disease is one of the consequences that often follow an attack of typhoid fever, and that the insured became ill in the summer of 1911, and that it developed he had a dilated heart with valvular lesions and leaking valves. From that time for a period of about a year, he was confined to his bed most of the time and became permanently disabled. There was a clause in his benefit certificate which provided that in case of permanent disability he should be entitled to recover one-half of the amount of his policy. He brought suit against the insurance association in the latter part of 1912 to recover under this clause of the policy, and judgment was taken by default against the association. Service in the case was had upon local officers of the association, and the managing officers did not learn of the pendency of the suit until after judgment had been rendered against the association. An attempt was made to have the court set aside the judgment, but this was unsuccessful, and, upon the advice of counsel, the association paid the judgment.

The association then for the first time discovered that the insured had had typhoid fever. The rules of the order provide that benefit certificates may be revoked and members expelled for fraud in procuring membership in the association. The insured was cited to appear for a hearing, and, upon his trial, was expelled and his insurance cancelled. The by-laws provide for a hearing on the part of the insured either in person or by counsel. They also provide that the hearing may be either upon oral evidence or upon affidavits forwarded by the insured to the board of directors of the association.

Evidence was adduced by the insured tending to show that on May 10 1910, he made application to the Modern Woodmen for a policy of insurance, and was examined by the same physician who examined him for the policy now in controversy. In that examination he was asked about the diseases he had had, and answered that he had typhoid fever two months in 1900 and had a complete recovery. He was also asked if he had been treated by or had consulted any physician in regard to personal ailments within the last seven years and answered that he had not.

Mrs Fordham testified that when the application for the policy now in controversy was made, her...