Heinrichs v. Royal Neighbors of America

• Decision Date: 14 February 1927
• Docket Number: No. 15869.,15869.
• Parties: HEINRICHS v. ROYAL NEIGHBORS AMERICA.
• Court: Missouri Court of Appeals

292 S.W. 1054

HEINRICHS v. ROYAL NEIGHBORS AMERICA.

No. 15869.

Kansas City Court of Appeals. Missouri.

February 14, 1927.

Rehearing Denied March 7, 1927.

Certiorari Denied April 15, 1927.

Appeal from Circuit Court, Jackson County; Fred A. Woon, Judge.

"Not to be officially published."

Suit by Mary C. Heinrichs against the Royal Neighbors of America. Judgment for plaintiff, and defendant appeals. Affirmed.

Benj. D. Smith, of Mankato, Minn., and Fred A. Boxley, of Kansas City, for appellant.

Darius A. Brown and J. Prescott Brown, both of Kansas City, for respondent.

BLAND, J.

This is a suit upon a death benefit certificate in the sum of $1,500, issued by defendant on the life of one Vernie Leora Vaughn, in favor of plaintiff, her mother, as beneficiary. There was a verdict and judgment in favor of plaintiff in the sum of $1,711, and defendant has appealed.

The facts show that defendant is a fraternal beneficial association, incorporated under the laws of the state of Illinois, that the benefit certificate sued upon was issued on April 7, 1916, and that, at the time of the death of the insured on June. 10, 1923, she was a member of said society in good standing. The cause was defended on the ground that the insured had violated the contract of insurance by performing a self-inflicted abortion upon herself, which resulted in her death. The answer pleads that the terms of the benefit certificate provided that it was issued "subject to all conditions of this certificate and the laws of this society," and was issued and accepted only upon the "foregoing conditions and the express warranties printed on the back of this certificate"; that one of these conditions was that, if death to the holder of the certificate "shall result from a criminal or self-inflicted abortion or miscarriage, or attempt thereat, * * * then this certificate shall be null and void and of no effect, and all moneys which have been paid, and all rights and benefits which may have accrued on account of this certificate shall be absolutely forfeited, and this certificate become null and void."

The answer further pleads another condition appearing on the back of the certificate, providing that it was "agreed by the member holding certificate that the certificate, the charter or articles of incorporation, the by-laws of the society, and the application for membership and medical examination signed by the applicant shall constitute the agreement between the society and the member," etc. The answer then pleads the following from the application for the certificate:

"Do you agree that any certificate or indemnity issued to you by this society shall be void if your death shall directly or indirectly result from an attempted or completed intentional abortion or miscarriage, unless upon the advice of a physician in an attempt to save your life? Yes."

The answer finally pleads:

"* * * That said deceased came to her death as the result of a self-intentioned abortion, and that under the terms and conditions of said certificate of insurance and of the by-laws of said defendant society said certificate became and is void, and defendant is indebted to plaintiff in no sum whatever on account of the death of said deceased."

The reply denied that deceased came to her death as the result of a "self-intentioned abortion," and denied that "under the terms and condition of said certificate of insurance and of the by-laws of said defendant society said certificate became and is void."

Defendant introduced in evidence the proofs of death; that part of the proofs signed by the plaintiff stated that the death of the insured resulted from "miscarriage"; that part signed by Dr. Hamilton, insured's attending physician at the time of her death, contained the following information:

"Question: (a) Did you attend deceased during his or her last illness? (b) If so, for what disease or diseases? Answer: (a) Yes. (b) Septicemia.

"Question: State the remote cause of death; if from disease, give predisposing causes, date of the first appearance of its symptoms, the history and symptoms during its progress. Answer: Miscarriage on May 26, 1923, with history being sick three days before she was curetted.

"Question: (a) Was there a surgical operation immediately before or during last illness? (b) If so, give date thereof, its nature and hospital or place where performed. Answer: (a) Yes. Currettment May 26, 1923; history given me by husband and mother.

"Question: What was the immediate cause of death, and, if disease, its duration and history. Answer: Sepsis."

In support of its defense, defendant called as a witness Dr. Tarson, who testified that he first met deceased on May 22, 1923, when he was called to her house to give her medical attention; that he saw her every day until four or five days before her death; that when he first called to see her she told him from what she was suffering. He testified that at that time she was suffering from an incomplete abortion, which completed itself later; that before treating her he desired a statement from her that he had not caused the miscarriage, and that he took a writing from her to "protect myself from any criminal liability." This writing reads as follows:

"This is to certify that about a week ago I induced an abortion upon myself by inserting a catheter into my uterus. I engaged Dr. Tarson on May 22, 1923, to take care of me in so far as necessary in his judgment.

"[Signed] Mrs. Verna Vaughn. "Witness: Troy Vaughn."

(Troy Vaughn was the husband of deceased.)

The doctor further testified that the abortion was not committed upon his advice.

On cross-examination, Dr. Tarson testified that at the time he treated insured the condition of her health was very poor; that "she was emaciated and seemed to have (lost) a great deal of "flesh, and looked like a woman who had been sick some time"; that "* * * she had a very severe case of tonsilitis"; that he would not "particularly" call the infection of her tonsils "septicemia," but they were infected with poison; that he also treated her for sciatic and articular rheumatism, and that both of these ailments were severe; that he treated her up until the 4th or 5th of June. He further testified that in his opinion insured's death was not caused by any one particular thing; that it was not caused "primarily" by "any miscarriage or abortion." He was then shown an affidavit that he had made, which was then introduced in evidence, and which recited that—

"* * * In his opinion, the death of Mrs. Troy E. Vaughn was not the result of or caused by any conduct or action on her part in attempting to produce an abortion, but was caused by and the result of other conditions and ailments."

On redirect examination, he testified that he meant in this affidavit to say that the abortion was not the entire cause of her (insured's) death; that she was not in good health all the way through; that the abortion would not have caused her death; that lie meant "that, if Mrs. Vaughn was in good health before the abortion, the chances are the abortion would not have caused any septicemia; * * * if she had good health she would have overcome it"; that abortion is " one of the common causes of septicemia, and is very dangerous from that standpoint.

He further testified that "the abortion and consequent septicemia was not * * * the sole, cause of Mrs. Vaughn's death"; that "it contributed indirectly, all those things do"; that she "developed sciatica, had bad tonsils and articular rheumatism, and of course those were all complications; if she did not have all those complications, the chances are the abortion itself would not have caused her death."

"Q. But the abortion was the producing cause was it not? A. I could not tell from the history. She had those attacks prior to the abortion, repeated attacks of rheumatism and tonsilitis. "Q. Do you think rheumatism kills people that way? A. I think they do; yes. I have seen cases where they do.

"Q. That is where the heart is involved, isn't it? A. Yes."

He testified that at the time he started to treat insured "she was infected, 0 * running a temperature; she had some chills before that time, and had pain down the groin and leg which I supposed was due to sciatica, and swollen joints at that time, and pain"; that he treated her foe septicemia and for the other troubles from which she was suffering; that for her sciatic rheumatism he prescribed medicine and gave her injections; that he did not recall all the treatments that he gave her; that at the time he first saw her she had a temperature but whether this was due to septicemia or articular rheumatism he could not tell; that later on he decided that septicemia was causing the temperature.

On recross-examination he testified:

"Q. Either one of these things you were treating her for—infected tonsils would have killed her? A. Yes; certainly.

"Q. Sciatica could have killed her? A. With other complications; yes.

"Q. Articular rheumatism very frequently is fatal, of the kind that she was suffering from? & Yes."

On redirect examination he was again asked in reference to the affidavit he made, and he stated that what he meant in that affidavit was:

"* * * That septicemia or the abortion was not the entire cause of death. It contributed to the death. I explained that if it wasn't for the fact that she had had other complications that septicemia could not have killed her."

Dr. Hamilton, called as a witness for defendant, testified that he first treated deceased on November 24, 1922, of sciatica "of the right side" and "some infected glands in the side of her neck, * * * poison in the glands of her neck, * * * and some pain in the episgastrium, coming and going, leucorrhea, and an infected rectum"; that at that time he found she was suffering from infected or poisoned tonsils" and pyorrhea, and there was "laceration of the peritoneum and cervical endometritis"; that he next saw her on February 2d, 1923,...