Elliott v. Grand Lodge Brotherhood of R.R. Trainmen
| Decision Date | 25 May 1936 |
| Docket Number | No. 18493.,18493. |
| Parties | WILLIAM R. ELLIOTT, RESPONDENT, v. GRAND LODGE BROTHERHOOD OF RAILROAD TRAINMEN, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jackson County. — Hon. Marion D. Waltner, Judge.
REVERSED AND REMANDED.
David B. Logsdon and V.E. Phillips for respondent.
Tom J. McGrath and Harding, Murphy & Tucker for appellant.
Plaintiff, on December 12, 1928, made application to the defendant through its local organization in Jefferson City, Missouri, for a benefit certificate, Class G, for $5000. In April, 1929, the defendant accepted the application at its Home Office in Cleveland, Ohio, and forwarded a certificate to its local organization in Jefferson City, Missouri. The certificate was accepted and became a completed contract in Missouri in May, 1929. The certificate stated that plaintiff was a member of Jefferson City Lodge, No. 637, of the Brotherhood and that he was entitled to all of the rights, privileges and benefits of membership and to participate in the beneficiary department, Class G, of the Brotherhood to the amount set forth in Section 68 of the defendant's constitution, which amount in the event of plaintiff's total and permanent disability, as defined in said section 68, would be paid to him; that it was issued upon the condition that plaintiff would comply with the constitution, general rules and regulations of the Brotherhood then existing or which were thereafter adopted; that the certificate with the application, medical examination, the constitution, by-laws and general rules of the Brotherhood constituted the contract; that plaintiff would pay all dues and assessments imposed upon him within the time specified in the constitution and general rules and that a failure to do so forfeited the insurance. Thereafter, plaintiff claiming that he had suffered the permanent loss of the sight of his left eye, brought this suit to recover the benefit provided in the contract. The petition declared upon the certificate alleged that Section 68 of the constitution was as follows:
"`Any beneficiary member in good standing ... who shall suffer the complete and permanent loss of sight of one or both eyes, ... shall be considered totally and permanently disabled... and shall thereby be entitled to receive, upon furnishing sufficient and satisfactory proofs of such total and permanent disability, the full amount of his beneficiary certificate;'" that on or before August 28, 1931, he lost "the sight of his left eye, that such loss is complete and permanent;" that he had performed all of the conditions and requirements of the contract, made demand of the defendant for payment of the benefit in the sum of $5000 and that the demand was refused.
The defendant's answer pleaded the laws of Ohio and stated facts sufficient to show that it was a voluntary fraternal benefit society organized under the laws of Ohio and facts sufficient to show that it was a fraternal benefit society as defined in section 5990, Revised Statutes, Missouri 1929; that the defendant limited its membership to one hazardous occupation and for that reason was not required to obtain a license from the superintendent of insurance to transact business in Missouri; that in the application plaintiff made the following answers to the following questions:
that said answers, though warranted to be true, were in fact false; that in February and March, 1928, plaintiff consulted physicians and that at said date plaintiff had a disease of the left eye, "being the same disease of said eye as plaintiff now claims he is suffering from;" that on three occasions prior to the date of the application the acuity of plaintiff's eyes had been questioned; that plaintiff obtained the certificate described in his petition from the defendant by false and fraudulent means in that the answers, about quoted, were knowingly and falsely made by plaintiff for the purpose of deceiving the defendant and "that the matters so misrepresented actually contributed to the contingency upon which the policy was to become due and payable and that had it not been for said false and fraudulent misrepresentations, defendant would not have issued said certificate ...;" that upon discovering the falsity of the statements in the application it tendered to the plaintiff all of the assessment which it had received from him, which was the sum of $228.25, and that it tendered said sum and had deposited it with the clerk of the court for the benefit of plaintiff. A trial of the cause resulted in a verdict and judgment for plaintiff in the sum demanded. The defendant has appealed.
The plaintiff's evidence tends to show that in 1927 he was a brakeman on the extra list of the Missouri Pacific Railroad Company; that in March, 1928, while he was working for the Sheffield Steel Corporation in Kansas City, Missouri, a doctor and a nurse, employees of said corporation, after examining him directed that he go to Dr. Small for examination of his eyes; that on March 8, 1928, his eyes were examined by Dr. Small who advised him not to work "against that hot fire" and directed that he go to another doctor for a blood test; that none of the doctors questioned the acuity of his eyes; that in the late spring of 1930 while performing his duties as a brakeman a hot cinder escaped into his right eye; that the injury was treated by a doctor and a bandage placed over plaintiff's right eye; that when he returned to his place of work he discovered for the first time that the sight of his left eye was affected and that thereafter the condition "gradually grew worse;" that in October, 1931, he furnished proof to the defendant that he had lost the sight of his left eye and that the loss was permanent. The defendant, in March, 1932 wrote a letter to the plaintiff stating that it had canceled his certificate and enclosed a check for $228.25 in payment of the beneficiary assessments remitted by the plaintiff. The tender was refused.
Dr. Small, plaintiff's witness, said that he examined plaintiff's eyes on March 8, 1928, found in plaintiff's left eye a condition of disseminated choroditis, a progressive and incurable disease. Dr. Small based his testimony mainly upon his office record made at the time of the examination and upon the report of his finding made to his employer, Sheffield Steel Corporation. Plaintiff was not aware of the fact that either the record or report was made. Dr. Small did not advise plaintiff of the condition which he found in his left eye.
During the cross-examination of plaintiff the defendant introduced its constitution. Section 58 thereof provided that the defendant would establish a beneficiary fund; that in order to maintain said fund it would levy assessments monthly upon each beneficiary member, as follows: "Upon each Class G $5000 certificate $5.85;" that when the fund "falls below the amount of $4,000,000 the general secretary and treasurer shall levy an extra assessment equal in amount to the regular monthly assessment levied upon all beneficiary members, and shall continue such extra assessments monthly until the amount of $4,000,000 has been reached and remains in the beneficiary fund."
The defendant introduced the certificate, copy of the application and medical examination made by the defendant's medical examiner at the time the application was signed. The report of defendant's medical examiner stated that he had examined plaintiff; that plaintiff's sight and hearing were normal and that he considered plaintiff a good risk. Plaintiff introduced receipts executed by the defendant showing that plaintiff had paid all assessments and dues to and including the assessment and dues for the month of December, 1931.
The defendant's evidence was to the effect that plaintiff's left eye was diseased as early as March, 1928; that the disease was permanent, progressive and incurable and that plaintiff was advised prior to the making of the application that his left eye was diseased. The defendant's evidence further tended to show that it was a voluntary fraternal benefit society organized under the laws of Ohio and that it was a fraternal benefit society as defined...
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