Kern v. Supreme Council American Legion of Honor
| Decision Date | 19 February 1902 |
| Citation | 67 S.W. 252,167 Mo. 471 |
| Court | Missouri Supreme Court |
| Parties | KERN v. SUPREME COUNCIL AMERICAN LEGION OF HONOR.<SMALL><SUP>†</SUP></SMALL> |
4. Rev. St. 1889, § 6606, provided that "all acts not revised, amended and re-enacted" in the general revision shall be deemed repealed. Laws 1881, p. 87, exempting domestic and foreign fraternal societies from the operation of the general insurance laws, was not re-enacted in the revision of 1889, except as provided in sections 2823, 2824, Rev. St. 1889, declaring that domestic fraternal societies shall not be subject to the general insurance laws. Held, that the revision of 1889 repealed Laws 1881, p. 87, so far as exempting foreign fraternal societies from the operation of the general insurance laws.
5. Rev. St. 1889, § 5849, providing that no misrepresentation made in obtaining a life policy shall be deemed material unless the matter misrepresented shall have actually contributed to the event on which the policy became payable, and section 5850, rendering a defense of misrepresentation invalid unless the insurer at the trial shall deposit in court the premiums received on the policy, are applicable to a foreign fraternal society; and hence, in a suit on a life policy issued by a foreign fraternal society, evidence under an answer alleging the insured's misrepresentations, without averring that the misrepresentations contributed to the event on which the policy became payable, — the society having failed to deposit the premiums received, — was properly excluded, and an instruction on the theory that the answer states a defense is erroneous.
6. A demurrer to the evidence in a suit on a life policy issued by a foreign fraternal society on the life of a married woman for the benefit of her husband does not raise the question of the right of the husband to be a beneficiary, where no such issue was raised in the pleadings or asserted at the trial.
7. Under Rev. St. 1889, § 5849, providing that no misrepresentation made in obtaining a life policy shall be deemed material unless it actually contributed to the event on which the policy becomes payable, and that whether it did so shall be a question for the jury, and section 5850, rendering a defense of misrepresentation invalid unless the insurer shall deposit in court the premiums received on the policy, an answer in a suit on a life policy which merely alleges fraudulent representations made by the insured, and prays for the cancellation of the policy, does not convert the suit into one in equity; the statutes applying to fraudulent representations as well as to innocent representations.
Appeal from St. Louis circuit court; Jas. E. Withrow, Judge.
Action by Frank Kern against the Supreme Council American Legion of Honor. From a judgment for plaintiff, defendant appeals. Affirmed.
This is an action on a benefit certificate for $1,000 issued by the defendant on October 4, 1895, to Katherine Kern, loss payable to her husband, the plaintiff. She died December 21, 1895. The plaintiff recovered in the circuit court, and defendant appealed.
The defendant is a fraternal beneficial association organized under the laws of Massachusetts, having its principal office and its chief officers in Boston. It has lodges in various cities, — among them, Garratt Council, No. 1,071, located in St. Louis, of which the deceased became a member on the 4th of October, 1895. She paid her dues and assessments to the collector of her said council in St. Louis, and received the benefit certificate in that city from the officers of said council. The defendant admits the membership of the deceased and the issuance of the certificate (except it claims the contract was entered into in Massachusetts, and not in Missouri), and also admits the death. But it defends chiefly on three grounds: First. That the deceased made misrepresentations in her application for membership and in her answers to the medical examiner, which avoid the policy, whether innocently or fraudulently made, because she warranted the truth of all she then said; and, further, that such statements and answers were material and necessary to enable defendant to judge whether she was a fit person to become a member; that defendant did not know they were false, and did not discover their falsity until after her death; that defendant relied solely upon her statements and answers; and that her admission to membership was procured by fraud. Second. That under the laws of Massachusetts, and under defendant's charter and by-laws, the policy is void because her husband is the beneficiary, which said laws and charter do not authorize. Third. Because sections 5849, 5850, Rev. St. 1889, which provide that no misrepresentation in procuring a policy of insurance shall be deemed material or avoid the policy "unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable, and whether it so contributed in any case shall be a question for the jury," and, further, that no defense based upon misrepresentations in obtaining a policy shall be valid "unless the defendant shall, at or before the trial, deposit in court, for the benefit of the plaintiffs, the premiums received on such policies," are unconstitutional.
The statements and answers referred to in the first defense are that the deceased was asked in her application for membership, "Have you ever had any severe illness?" to which she replied, "No;" and further, "When last attended by a physician, and for what cause?" to which she replied, "Twenty years ago; malaria;" and further, "Is there anything, in your knowledge or belief, in your family or personal history or habits, tending to shorten your life, which is not distinctly set forth above?" to which she replied, "No;" and that she was asked by the medical examiner, "Are the functions peculiar to her fully established and regular?" to which she replied, "Yes;" and further, "Is there any indication of any disease peculiar to her sex?" to which she replied, "No;" and further, "Now pregnant?" to which she replied, "No." These answers are alleged to be false, and it is averred that, on the contrary, she was treated in May, 1895, for hepatitis (liver trouble) and amenorrhœa (suppression of menses), and that she was then pregnant, was delivered of a live child on December 16, 1895, and died on December 21, 1895. The certificate of the attending physician in her last illness contains the following questions and answers:
11. (a) State the remote cause of | (a) Intestinal ulcer
death; if from disease, give the | Dec. 19th, tympanitis
predisposing cause, date of first | vomiting
appearance of its symptoms, its | exhaustion, peritonitis
history, and the symptoms present | death
during its progress. |
|
(b) State the immediate cause of | (b) Perforation
death. | of ulcer.
|
13. State any other facts within |
your knowledge pertaining to the |
last sickness of the deceased, or | Confined on Dec.
which, in your judgment, contributed | 16th, 1895.
directly or indirectly to the |
cause of death. |
The defendant offered the evidence of the family physician, the medical examiner, the physicians who conducted the autopsy, and medical experts, to show that a woman could not be pregnant over four months and not know it, to show the physical condition of the deceased before and after she became a member, and to show the cause of death. The court excluded such evidence, partly because the attending and family physicians were incompetent to testify to anything they learned while treating her, and partly because the defendant could not avail itself of any statements or...
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