Cundiff v. Royal Neighbors of America
| Decision Date | 19 February 1912 |
| Parties | J. W. CUNDIFF, Respondent, v. ROYAL NEIGHBORS OF AMERICA, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Boone Circuit Court.--Hon. D. H. Harris, Judge.
AFFIRMED.
Case affirmed.
E. A Enright, James A. McLane and W. J. Gentry for appellant.
Harris & Finley for respondent.
This suit was instituted in the circuit court of Boone county, and was an action to recover one thousand dollars, on a benefit certificate issued by the defendant on the life of the wife of the plaintiff. A trial before a jury resulted in a verdict for the plaintiff for the amount sued for; and the defendant after filing an unsuccessful motion for a new trial, appealed.
The petition was in the usual form; it alleged that the defendant issued its benefit certificate to Eunice Cundiff, in the sum of $ 1000, payable to the plaintiff, and that the plaintiff and also the said Eunice Cundiff had fully complied with all of the terms and conditions of said benefit certificate. The answer was a general denial, then an admission that the defendant is and was a fraternal beneficiary association duly authorized to do business in Missouri, and that it issued its benefit certificate, in said sum, on the life of said Eunice Cundiff, payable to the plaintiff. The answer then alleged that said contract consisted, first, of the benefit certificate sued on, second, the application for said benefit certificate, and third, the by-laws of the defendant. That it was specially made a part of the contract that the questions in said application should be truthfully answered by the said Eunice Cundiff, and that any false answer on any subject would vitiate said benefit certificate. It was then alleged that, in her said application, the said Eunice Cundiff stated that she was of sound mind and body, and that no examining physician for any life insurance company, association or society had ever rejected her application; and that she had never made application for life insurance or indemnity, and withdrawn the same before final action; and that all three said answers were false. The answer further alleged that the deceased had not paid all assessments due, which by section 44 of the by-laws of defendant she was bound to pay; and also alleged that it was made a condition precedent to liability that the said Eunice Cundiff should be in sound health at the time of delivery of said benefit certificate, and that she was not in sound health at said time. A reply put in issue the new matter of defendant's answer.
The plaintiff's evidence tended to show that in 1908, Eunice Cundiff was the wife of plaintiff, having been married in 1901. The plaintiff and his wife lived on a farm near Englewood, in Boone county, Missouri, and the plaintiff operated a sawmill in addition to a small farm on which he and his family lived. In 1904, Mrs. Henrietta Smith accompanied Mrs. Cundiff to the office of Dr. W. F. Walter, who was the examining physician for Snow Drop Camp, a subordinate lodge of the defendant located at Englewood. Dr. Walter then examined Mrs. Cundiff for life insurance in the defendant society, ascertained that her lungs were affected to such extent that she was not a suitable person to receive a benefit certificate, and declined to recommend her application. On April 11, 1908, Eunice Cundiff again went to see Dr. W. F. Walter, who was still the examining physician of Snow Drop Camp and again asked to be examined for life insurance in defendant society. Mrs. Henrietta Smith again accompanied Mrs. Cundiff to Dr. Walter's office, and Dr. Walter then and there declined to examine Mrs. Cundiff for the reason that he had previously examined her, had rejected her application and that he knew there was no use of examining her again. Mrs. Cundiff and Mrs. Smith then went over in Callaway county and visited the office of Dr. G. D. Miller, since deceased, and solicited Dr. Miller to examine Mrs. Cundiff. He did so, wrote out his examination in the usual form, took the application in writing, which was signed by Mrs. Eunice Cundiff, and forwarded the same to the defendant. It was upon this application, accompanied by the certificate of Dr. Miller, that the benefit certificate here sued on was issued. In said written application, Mrs. Cundiff stated that no physician had previously examined her for life insurance or indemnity and declined to recommend her. She further stated that she had never made application to any insurance company, association or society for insurance or indemnity, and withdrawn her application before final action thereon. She also stated, in said application, that she was of sound mind and body, and free from disease.
The plaintiff's evidence further tended to show that Mrs. Cundiff died on May 24, 1911, that the usual proof of death was furnished the defendant, and that the defendant declined to pay any sum whatever. There was also some evidence tending to show that Mrs. Cundiff was in good health at the time of the issuance of the benefit certificate sued on, that she attended to her usual household duties, etc.
Defendant's evidence tended to show that Dr. Walter, who had examined Mrs. Cundiff for membership in the defendant's order had declined to recommend her for insurance in the first instance because he found that her lungs were affected and that he refused to examine her the second time she applied to him, for the reason that he was satisfied with his previous examination. His evidence also was to the effect that he had frequently treated her for consumption.
In January, 1901, Dr. Carryer treated her for pneumonia and several years thereafter for consumption. His statement was that she had consumption. He was unable to state the time of his last treatment of her. Defendant introduced much evidence tending to show that Mrs. Cundiff had consumption and that her health generally was bad.
In rebuttal Dr. Norris testified that he examined Mrs. Cundiff on February 11, 1910, for life insurance. His statement was "I would say she was in good health then and constitutionally sound." But...
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