Finch v. Modern Woodmen of America

• Decision Date: 13 July 1897
• Citation: 71 N.W. 1104,113 Mich. 646
• Court: Michigan Supreme Court
• Parties: FINCH v. MODERN WOODMEN OF AMERICA.

71 N.W. 1104

113 Mich. 646

FINCH v. MODERN WOODMEN OF AMERICA.

Supreme Court of Michigan

July 13, 1897

Error to circuit court, Marquette county; John W. Stone, Judge.

Action by Jane Finch against the Modern Woodmen of America. Judgment for defendant, and plaintiff brings error. Affirmed.

F. H Peters and S.W. Shaull, for appellant.

J. G Johnson, for appellee.

MOORE, J.

The plaintiff is the beneficiary named in a certificate of insurance issued by the defendant, a mutual benefit association, upon the life of Loren C. Finch, her husband. The defendant interposed as a defense that the answers made in the application for insurance were untrue, and that according to the terms of the contract, the certificate was void. The trial judge directed a verdict in favor of defendant. Plaintiff appeals.

Mr Finch was a resident of Negaunee. He was solicited by Mr Byrnes, a deputy head consul of defendant, and who was authorized to solicit members and to establish camps, to become a member of the camp at Ishpeming, three miles away. He made a written application, which was filled up by Mr. Byrnes, and presented to the Ishpeming camp. The application was at once referred to a committee composed of men who knew Mr. Finch. They at once reported favorably. The camp voted favorably for his admission, and his application was referred to Dr. Andrus, the examining physician of the camp. Mr. Finch appeared for examination, and was examined at least once, probably twice, and perhaps three times. Dr. Andrus found traces of albumen in the urine, and came to the conclusion Mr. Finch had Bright's disease, and testified that he so told Mr. Finch. It is claimed on the part of the plaintiff that in an interview between Mrs. Finch, Mr. Peters, her attorney, and Dr. Andrus, the doctor informed them that he saw Mr. Finch but once, and made a partial examination of him. Just what occurred after the examination made by Dr. Andrus on the part of the Ishpeming camp in relation to this examination is not very clearly disclosed. The record which contains the names of rejected applicants does not contain the name of Mr. Finch. The card containing his application is in possession of the camp, and is indorsed with the action of the committee, the result of the balloting, and has written upon it in pencil the word "Rejected." This is in the handwriting of Mr. Rowley, who was then the secretary of the camp. When it was written does not appear. A little later, Mr. Byrnes organized a camp at Negaunee. April 30, 1894, Mr. Finch made application to become a charter member at the solicitation of Mr. Byrnes. He was examined by the local camp physician, who had known him for some time. His urine was examined. The camp physician regarded him as a good risk, and so reported him. A certificate of insurance was issued to him. He became a member of the Negaunee camp. In the following winter he had la grippe, but seemed to recover from it in the spring, so that he was about his work. Later he was taken ill, and November 24, 1895, died from Bright's disease, or heart trouble, or both. The record discloses that after Mr. Finch became a member of Negaunee camp, Dr. Andrus had some correspondence with the head physician. "I have corresponded with the company in regard to this case, but not since the death. I don't remember the exact date I did correspond with the company before the death. I think it was in the fall of 1895. I corresponded with the head physician. I told him of the examination I had made, and of the result of it." Mr. Finch, while a member of the Negaunee camp, paid all his dues, including an assessment made November 1, 1895. A number of the neighbors of Mr. Finch were sworn as witnesses, who testified to his appearing to be in excellent health in the spring of 1894 and prior thereto, and there is nothing in the record to show that he was not a desirable risk in the spring of 1894, except what resulted from the examination made by Dr. Andrus.

The application for membership, among other things, contained the following: "Do you understand the objects, organization, mode of government, and laws of this order, and particularly that part of the laws providing for the qualifications for and restrictions upon membership, and providing for the forfeiture of indemnity for untrue statements or answers in application or failure to pay dues and assessments? Answer: Yes. I am not now a member of this order. I have not within six months, and never more than three times, been rejected therein. I have never been expelled from any camp of this order, and am not now under suspension in any such camp. If now a member to what camp do you belong, and what is the amount of your benefit certificate? Answer: Not a member. I am of sound body and mind, and free from disease or injury. I do hereby consent and agree that this application and the laws of this order shall form the sole basis of my admission to and membership in this order, and that any untrue or fraudulent statements or answers made to the camp physician, or any concealment of facts, intentional, or otherwise, in this application, shall forfeit the rights of myself and my beneficiaries to all benefits and privileges therein or arising therefrom. Have you ever been rejected by any life insurance company or mutual benefit association? No. If so, give year and company. Have you ever made application for life insurance or benefit, and withdrawn same before final action? No. If so, give year and company. Has any examining physician for life insurance company or order declined to recommend your application? No. If so, give name and address. Have you ever had difficult, excessive, or scanty urination? No. Or any disease of the urinary or genital organs? No. Have you ever had any disease of the following named organs, or any of the following named diseases or symptoms: Kidney diseases. Answered, No. Applicant will please note this clause: I have verified each of the foregoing answers and statements, 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 literal truth of each shall be a condition precedent to any binding contract issued upon the faith of the foregoing answers, and I hereby constitute and make the officers of the local camp and of the Modern Woodmen of America who have aided in making this application my agents for such purpose. I further agree that the foregoing answers and statements, together with the preceding declaration, shall form the basis of the contract between me and the Modern Woodmen of America, and are offered by me as a consideration for the contract applied for, and hereby made a part of any benefit certificate that may be issued on this application, and shall be deemed and taken as a part of such certificate; that this application may be referred to in said benefit certificate as the basis thereof, and that they shall be construed together as one entire contract; and I further agree that, if any answer or statement in this application is not literally true, that my benefit certificate shall be void."

The benefit certificate contained the following provisions "This benefit certificate is issued and accepted only upon the following express warranties, conditions, and agreements: First. That the application of said Loren C. Finch and medical examination, which is made a part thereof, for membership in this order, and which is on file in the office of the head clerk, and is hereby referred to and made a part of this contract, for benefit, is true in all respects, 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 this order to such member and to his beneficiary or...