Goucher v. Northwestern Traveling Men's Ass'n

• Decision Date: 21 March 1884
• Citation: Goucher v. Northwestern Traveling Men's Ass'n, 20 F. 596 (E.D. Wis. 1884)
• Parties: GOUCHER v. NORTHWESTERN TRAVELING MEN'S ASS'N.
• Court: U.S. District Court — Eastern District of Wisconsin

20 F. 596

GOUCHER v. NORTHWESTERN TRAVELING MEN'S ASS'N.

United States Circuit Court, E.D. Wisconsin.

March 21, 1884

Mr Hanson and D. S. Wegg, for plaintiff.

Jenkins Winkler & Smith, for defendant.

DYER J., (charging jury.)

The defendant is a corporation, created for the purpose of paying a fund to and protecting the families of those of its members who may be removed by death. It is provided by the constitution of the association, which is in evidence, that any man of good moral character and in good general health and not over 40 years of age, who at the time of his application is, and for one year immediately prior thereto has been, engaged as a traveling salesman, traveling buyer or traveling agent for any wholesale house, company, or corporation, is eligible to membership in the association. All applications for membership are referred to the board of directors of the association, who may require such proof as to them may seem proper, as to the applicant's qualifications and eligibility. All applicants are required to furnish a medical certificate, and by one of the rules it is required that applicants shall pass a medical examination. Admission to membership involves the payment of an initiation fee of five dollars, and also the further sum of two dollars for first assessment. The constitution also provides that it shall be the duty of the board of directors to take a general supervision of the business of the association, to decide on all applications for membership and on all proofs of death, and order assessments to pay death losses. Upon suitable proof of the death of any member of the association, the board of directors are required to pay, of the amount collected by assessment of $2 upon each member, a sum not to exceed $5,000 to the person previously designated by the deceased, upon his application for membership, upon the books of the association, or by his last will and testament. Thus, as is apparent, the benefit of a species of life insurance is secured to the members of the association.

On the thirtieth day of December, 1881, M. C. Goucher, since deceased, made application for membership in this association. He certified in his application that he was a traveling man; that he would comply with all the requirements of the constitution and by-laws of the association; that he had answered all the question accompanying his application honestly and truthfully; and he thereby agreed that any misstatement or concealment of any fact that would impair the interests of the association, by him, should annul all claims that he or his heirs or assigns might have to any benefit arising from his connection with the association. Accompanying his application were certain questions addressed to the applicant, and answered by him, among which were the following: Question 10. 'Are you now in good health, and do you usually enjoy good health? ' To which his answer was, 'Yes.' Q. 22. 'Is there any fact relating to your physical condition, personal or family history or habits, which has not been stated in the answers to the foregoing questions, and with which the association ought to be made acquainted? ' To which he answered, 'No.' In his application the deceased named, as the person to whom he desired his death loss paid, his wife, Florette A. Goucher, the plaintiff in this suit. As part of the application, two persons, members of the association, certified among other things that they were well acquainted with Mr. Goucher, and that he was then in good health. It appears further that when the deceased made his application for membership he submitted to a medical examination by Dr. Thorndike, medical examiner for the association in Milwaukee, and certain questions pertaining to such examination were answered by Dr. Thorndike, among which are the following: Question 7. 'Has he now or has he had any disease of the stomach, liver, spleen, kidneys, intestinal canal, or urinary organs? ' To which the doctor answered, 'No.' Q. 11. 'Has the party ever had any severe injury or illness? ' To which the answer was, 'Typhoid fever in 1866.' Further, as part of question 11: 'If so, has it had any perceptible effect on his constitution? ' Answer, 'No.' The testimony of Dr. Throndike tends to show that he made these answers upon personal examination of the applicant, and upon information then furnished him by the applicant. The application of the deceased, and the certificates, questions, answers, and report of medical examination, are in evidence. It appears that the application of Mr. Goucher was approved by the board of directors of the association, and he was admitted to membership on the seventh day of January, 1882. On the twelfth day of September, 1882, he died, and thereafter proofs of death were delivered to the defendant. Payment of the insurance not being made, this suit was brought by the plaintiff, as the beneficiary designated in the application for membership, to recover the amount of the death loss, which is alleged to be $5,000. The question is, is she entitled to recover? and that depends upon whether the several questions which I have enumerated were truthfully answered. This is conceded by the plaintiff, it being expressly admitted by her counsel that these questions and answers relate to facts material to the risk which the defendant was asked to incur.

Some testimony has been offered by the plaintiff in support of the contention that by applying for additional proofs of the health of the insured after the original proofs of death were made, and by accepting from the plaintiff the amount of a death loss assessment after the death of the insured, the defendant is now estopped to set up the defenses to this action which it was interposed; but this claim is not insisted upon, and by waiver of the same the sole issue in the case for you to determine is, were the answers to the questions referred to true or untrue? And it is further agreed by counsel for the plaintiff that the answers to questions 7 and 11 in the medical examination shall be regarded and treated as the personal answers of the insured, M. C. Goucher.

The first question answered by the applicant, in his application for membership, to be considered by you, relates to the health of the deceased on the thirtieth day of December 1881. He was asked: 'Are you now in good health, and do you usually enjoy good health? ' He answered, 'Yes.' It is contended by the defendant that this was not a truthful answer; that he was not then in good health, but, on the contrary, was at the time suffering from disease of the liver, and that his system was then weakened and depleted by physical disorder. The plaintiff insists that the deceased was not then afflicted by disease; that he was in good health, and usually enjoyed good health. The term 'good health,' as here used, does not import a perfect physical condition. It would not be reasonable to interpret it as meaning absolute exemption from all bodily infirmities, or from all tendencies to disease. It cannot mean that a man has not in him the seeds of some disorder. As has been well remarked by some of the law writers, 'such an interpretation would exclude from the list of insurable lives a large proportion of mankind. ' The term 'good health,' as here used, is to be considered in its ordinary sense, and means that 'the applicant was free from any apparent sensible disease, or symptoms of disease, and that he was unconscious of any derangement of the functions by which health could be tested. ' Confer v. Phoenix Ins. Co. 3 Dill. 226. Slight, infrequent, transient disturbances, not usually ending in serious consequences, may be consistent with the possession of good health as that term was here employed. 'The term must be interpreted with reference to the subject-matter and the business to which it relates. * * * It means apparent good health, without any ostensible or known or felt symptom of disorder, and does not exclude the existence of latent unknown defects; * * * but a predisposition to' or manifestation of 'a disease or disorder of such a character and to such a degree as to seriously or obviously affect the health, and to produce bodily infirmity, is incompatible with a representation of good health. ' May, Ins. Sec. 295. With this understanding of the expression 'good health,' and in the light of the evidence, you will say whether the answer which the deceased made to this question was true or untrue; that is, was he or not, on the thirtieth day of December, 1881, in good health, and did he or not usually enjoy good health?

That part of the next question answered by the deceased, and necessary to be considered by you in connection with the answer thereto, is this: 'Is there any fact relating to your physical condition * * * which has not been stated in the answers to the foregoing questions, and with which the association ought to be made acquainted? ' Answer. 'No.' In answering this question, the deceased was bound to state any fact, not before stated, relating to his physical condition which he knew or considered, or which, in the exercise of a sound judgment on the subject, he should have known or considered, would be material for the defendant to know in passing upon his application for membership. He had no right to conceal or withhold any such fact, if it existed. 'Concealment is the designed and intentional withholding of any fact material to the risk which the assured in honesty and good faith ought to communicate to the insurer; and every such fact wrongfully suppressed must be regarded as material, the knowledge or ignorance of which would naturally influence the judgment of the insurer in making the contract at all, or in estimating the degree or character of the risk. ' Daniels v. Ins. Co. 12...