Floyd v. Modern Woodmen of America
| Citation | 148 S.W. 178,166 Mo.App. 166 |
| Parties | NANNIE FLOYD, Respondent, v. MODERN WOODMEN OF AMERICA, Appellant |
| Decision Date | 03 June 1912 |
| Court | Court of Appeals of Kansas |
Appeal from Adair Circuit Court.--Hon. Nat. M. Shelton, Judge.
AFFIRMED.
Judgment affirmed.
B. D Smith and Bailey & Hart for appellant.
Campbell & Ellison and Weatherly & Frank for respondent.
Plaintiff is the widow of Vernon Floyd, deceased, and is the beneficiary in a certificate of life insurance issued to him on the 24th of November, 1908. Defendant is a fraternal benefit society and issued the certificate to Floyd as a member thereof. Floyd died in January, 1909, and defendant refused payment of the certificate. This action followed, and plaintiff recovered judgment in the circuit court.
The defense is based upon answers given by deceased in his application for the certificate, which defendant insists were false and thereby invalidated the certificate in plaintiff's hands as beneficiary. The questions to which the answers charged to be not full and complete, and therefore false, were, whether he had ever been treated by a physician within seven years prior to the 6th of November, 1908, the date of the application, and if so, to give the names of physicians treating him, etc. The answer was: Yes, that he had been treated by Dr. Wilcox for smallpox. He likewise answered that he had never had rheumatism or disease of the heart; and that a sister had died of typhoid fever after five week's illness. Defendant insists that all these answers were knowingly false.
Plaintiff admits the answer to the question of treatment by physicians in the past seven years is not full and complete. But defendant's "Deputy Head Consul," who solicited applications for membership, testified that he was present during the time that part of the application in question was being put in writing. That the answers were written by defendant's examining physician and that the deceased told of other ailments than smallpox he had had in the past seven years, such as bad colds, billious attacks, and stomach troubles, but that these were termed not serious by defendant's agent and that it was not worth while to state names of physicians, if any.
There was testimony in plaintiff's behalf tending to show that deceased's answers were true as to his never having had rheumatism, or disease of the heart. This evidence came from persons in a position to know. Some were his employers, who had observed him through a series of years as a laboring man engaged in different kinds of work, requiring strength and endurance, and they had never heard of his being sick, or observed that he was, nor had they heard him complain. The report of defendant's examining physician, giving details of his examination, shows deceased to have been a strong man without sign of organic disease. Defendant's soliciting agent went with deceased to the examining physician's office, which was on the second floor, and stated that deceased ran up the stairway two steps at a time.
So there was evidence tending strongly to show that deceased acted with the utmost candor in regard to his sister's death and its cause. He told defendant's physician he did not know the cause of her death, except that he heard it was typhoid fever; that his mother said she thought that was the cause of her death; and that he had heard she had consumption, "but that his mother claimed there was no consumption in the family." Plaintiff, deceased's widow, testified that she never heard him complain of rheumatism or heart disease, and that she had not detected any sign of such ailments. There was also evidence tending to discredit evidence in plaintiff's behalf. On the whole record, there was abundant evidence to sustain the verdict, and the judgment must be affirmed unless there was error in the ruling of the trial court.
Defendant as a fraternal association, is exempt from the...
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