Haney v. Security Ben. Ass'n of Topeka, Kan.

• Decision Date: 05 January 1931
• Citation: 34 S.W.2d 1046,225 Mo.App. 872
• Parties: DAYTON O. HANEY, GUARDIAN, ETC., RESPONDENT, v. THE SECURITY BENEFIT ASSOCIATION, APPELLANT
• Court: Kansas Court of Appeals

34 S.W.2d 1046

225 Mo.App. 872

DAYTON O. HANEY, GUARDIAN, ETC., RESPONDENT,
v.
THE SECURITY BENEFIT ASSOCIATION, APPELLANT

Court of Appeals of Missouri, Kansas City

January 5, 1931

Appeal from Circuit Court of Boone County.--Hon. H. A. Collier, Judge.

AFFIRMED.

Judgment affirmed.

Don C. Carter and R. E. Ausmus for respondent.

Clark, Boggs, Cave & Peterson for appellant.

ARNOLD, J. Bland, J., concurs. Trimble, P. J., absent.

OPINION [34 S.W.2d 1047]

ARNOLD, J.

This is an action to recover upon a benefit certificate of insurance.

Defendant is a corporation organized under the laws of the State of Kansas, with its home office in the city of Topeka in that state, and is duly authorized to operate in the State of Missouri. It is [225 Mo.App. 873] a fraternal beneficiary society, operating upon an assessment basis, through subordinate lodges located at various places in Kansas and other states; its members are received therein through initiation ceremony, first becoming social and later beneficiary members. The record shows that such a subordinate lodge was located at Centralia, Boone county, Missouri, known as Centralia Council No. 917.

On November 1, 1928, Zulah Haney, a married woman, made written application for a benefit certificate in the sum of $ 1,000, naming as beneficiaries therein her two children, namely, Dayton, Jr. and Dorothy Frances Haney. Upon said written application defendant issued its beneficiary certificate No. 1708002, in the sum of $ 1,000, payable to said minor children on the death of the insured. The certificate was delivered to insured on December 14, 1928, and signed by her on the same day.

Insured died on June 4, 1929, and plaintiff, husband of decedent and father of the beneficiaries named, became their duly appointed and qualified guardian, and this suit was instituted by him as such.

The petition is formal, naming the minor beneficiaries, alleging defendant is a corporation organized under the laws of Kansas as a beneficiary society, and authorized to do business in Missouri; that on November 12, 1928, defendant issued and delivered to Zulah Haney, mother of said children, a beneficiary certificate wherein it promised to pay on her death $ 1,000 to said children. The said certificate is attached to the petition. Further the petition alleges the death of Zulah Haney on June 4, 1929, and that proofs of death were furnished within the required time; that she was a member in good standing at the date of her death and the certificate was in full force and effect; that plaintiff has demanded payment of the amount due under the certificate but payment has been refused. Judgment is sought in the sum of $ 1,000, with ten per cent additional for vexatious refusal to pay, and attorney's fees.

The second amended answer upon which the cause was tried pleads, first, a general denial; and specifically pleads that under [34 S.W.2d 1048] the provisions of the certificate and the by-laws of the association which form a part of the contract, the insured must be in good health upon delivery of the certificate, to make the same effective, and alleges the insured was not in good health upon delivery of the same.

The answer further pleads that the answers to certain questions in the application were false and that the same were warranties, and alleges refusal to pay because insured was not in good health at the time the application was made and the policy delivered and because of false warranties in the application.

[225 Mo.App. 874] The reply was a general denial of the new matter set out in the second amended answer; that said insured made truthful answers to all questions asked in said application; that the answers set out in said application, if incorrect, are not as given by Zulah Haney; that applicant did not read the application before signing it and was at all times ignorant of the contents of the same.

Defendant filed a motion to strike all parts of the reply except the general denial, based upon three grounds: (1) That the second paragraph thereof is not in answer to new matter pleaded in defendant's answer; (2) that it states a part of plaintiff's cause in an attempt to piece out the petition; (3) that plaintiff is estopped to urge that applicant did not read the application, because in the same she warranted that she had read it, that it was correct and that such warranty was in consideration of the issuance of the certificate. The motion to strike was overruled.

The cause was tried to a jury, resulting in a verdict for $ 1,000, and judgment was accordingly entered. A timely motion for a new trial, stating eighteen grounds therefor, was overruled and defendant appeals. At the close of plaintiff's case and again at the close of all the evidence, defendant asked peremptory instructions in the nature of demurrers which were refused, and these rulings of the court are assigned as error.

Plaintiff in his evidence shows he was regularly appointed guardian of the beneficiary minors on June 11, 1929. C. C. Kimbrell, testifying in behalf of plaintiff, stated he was financier of council No. 917, at Centralia, Missouri; that he had known Zulah Haney since she was a child; that she resided at Centralia, Missouri, and was the wife of plaintiff and mother of Dayton O., Jr. and Dorothy Frances Haney; that Zulah Haney became a member of Lodge No. 917 at Centralia, becoming a social member in October, 1928, and a beneficiary member in December of that year. Witness identified the benefit certificate introduced in evidence and that he witnessed Zulah Haney's signature thereto; that she paid her first assessment December 6, 1928, and also assessments for January, February, March, April and May, 1929; that she died on June 4, 1929; that when she paid her first assessment, he had received the policy from the home office but did not have it with him at the time; that the policy was delivered to her December 14, 1928, at which time she signed it as required and that he (witness) was a witness thereto. The certificate was introduced in evidence and read to the jury, together with receipt for dues paid December 6, 1928.

Witness testified insured was in good standing at the time of her death; that the last assessment was paid May 5, 1929; that the monthly assessments did not become due until the first day of [225 Mo.App. 875] the month and must be paid by midnight the last day of the month; that he personally delivered the policy to Mrs. Haney, which she signed in his presence; that she was in good health at the time and was "a good risk;" that proofs of death were promptly made. Witness also identified the application upon which the certificate was issued.

At this point there was a stipulation to the effect that defendant was a fraternal organization; and this was followed by a demurrer to plaintiff's evidence which, as above stated, was overruled.

Defendant introduced in its behalf Dr. C. C. Parmer, who testified he was a physician and had practiced in Centralia, Missouri, for fourteen or fifteen years; that Zulah Haney was a patient of his prior to her death; that he had been her family physician for about eight years; that he had attended her in childbirth on May 22, 1923, at which time a dead child was born; that he next attended her in October or November, 1928, at which time she had a lump or growth in her left breast, a tumor; that this date was either October 24th, or November 13th; that the lump or tumor was about the size of an English walnut, under the skin, a little to the left of and above the nipple; that he advised her to return to his office soon, as he "regarded these growths as suspicious," and wanted her to come back in a short time; that, in his opinion, the growth had been there for some months.

On cross-examination, Dr. Parmer testified that on either October 24 or November 13, 1928, Mrs. Haney came to him for examination as to the lump in her breast; that on one of these visits she brought her son who was suffering from nose bleed; that he made a close physical examination of Mrs. Haney's breast; that her clothing was removed and the examination made next to...