Kidder v. Knights Templars & Masons Life Indem. Co.

• Decision Date: 15 December 1896
• Citation: 94 Wis. 538,69 N.W. 364
• Court: Wisconsin Supreme Court
• Parties: KIDDER v. KNIGHTS TEMPLARS & MASONS LIFE INDEMNITY CO.

94 Wis. 538

69 N.W. 364

KIDDER

v.KNIGHTS TEMPLARS & MASONS LIFE INDEMNITY CO.

Supreme Court of Wisconsin.

Dec. 15, 1896.

Appeal from circuit court, Eau Claire county; W. F. Bailey, Judge.

Action by Ida C. Kidder against the Knights Templars & Masons Life Indemnity Company to recover on a policy. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action on a policy of life insurance on the life of George A. Buffington in the sum of $5,000, brought by the plaintiff as beneficiary, to recover that sum, and the further sum of $700 for assessments paid on the policy. The defense was that the said Buffington was not a member of the defendant corporation at the time of his death; that for a long time prior thereto, and at the time of his death, he had violated and was violating the conditions of the policy, comprised in the fifth paragraph of the policy, to the effect that the assured was permitted to reside in any settled portion of the Western Hemisphere, lying north of the thirty-second parallel of north latitude, and in the United States lying south of the said thirty-second parallel, “excepting between the first day of July and the first day of November in any year,” without the knowledge or consent of the company previously given in writing, in that, on or about the 1st of July, 1893, he left his home and residence in the city of Eau Claire, Wis., and went to De Land, in Volusia county, Fla., south of said thirty-second parallel of latitude, with the intention and for the purpose of there remaining and residing, and that he did thereafter, up to the time of his death, September 16, 1893, continuously remain and reside at said last-named place, without the knowledge or consent of any officer of the company. The policy also provided that, “upon the violation of any of the conditions contained in the policy, it should be null and void, without action on the part of the company, or notice to the insured or beneficiary, and all payments made thereon, and all surplus of profits forfeited to the company,” etc. At the trial, before the court and a jury, it appeared that notice of the death of the insured was given to the defendant company September 22, 1893. The attorney for the beneficiary, November 8, 1893, wrote to the company to ascertain the date of the original policy, and who was the beneficiary named in it. On the 9th of that month this letter was answered by W. H. Gray, general manager of the company, who testified to having received a letter, dated November 18, 1893, from said attorney, with inclosed proofs of loss, and that he answered said letter on the 21st of the same month. The letter of November 18th requested said general manager to advise said attorney “how much Mrs. Kidder, the beneficiary, is entitled to under this policy, in addition to $5,000. She would, of course, be much pleased to receive prompt payment, and be kind enough to advise me when the same may be expected.” The letter of the general manager to the attorney for the plaintiff, dated Chicago, November 21, 1893, was as follows: “Dear Sir: Inclosed herewith please find proofs of loss in the case of G. A. Buffington, returned for correction. All the certificates give the date of the death as September 17th, with the exception of the physician's, which gives it as September 16th. We would ask that you give us the correct date of the death, and have the certificate made to correspond. Also, in answering the question ‘In what capacity do you make the claim?’ add to the answer, ‘As daughter.’ Please give this your early attention, return, and oblige, yours, respectfully, W. H. Gray, General Manager.” The witness further testified that the proofs of loss were returned in a letter stating: “As to the date of death and capacity in which the beneficiary claims insurance, I have corrected the proofs to correspond with your ideas. The physician's statement in regard to the date of death must, of course, be correct, as the undertaker at Eau Claire and the friends of the claimant were not present in Florida at the time of the death. Inclosed I return the papers to you, pursuant to your letter.” On the 27th of December, 1893, the general manager wrote to the attorney for the plaintiff as follows: “Dear Sir: The loss of George A. Buffington has been carefully considered by our executive committee. I am sorry to say to you that we find, from the proofs of loss, that Sir Knight Buffington forfeited his policy in this company by violating the stipulation referring to residence below the thirty-second parallel of north latitude. With best wishes, etc., W. H. Gray, General Manager.” The witness further testified, that was the end of the correspondence. On cross-examination he testified that, when he received the letter dated September 22, 1893, “I knew that Mr. Buffington had resided in Eau Claire. * * * He told me himself, when I saw him, that he resided in Eau Claire. All our communications were to him at Eau Claire, and he paid all his different assessments through the National Bank of Eau Claire. * * * We had no knowledge of where he died, other than that received in the communication dated November 8th. That letter stated he died at De Land, Florida, on the 16th day of September last. When we received the letter of November 18th we had no information on the subject of his death, other than that contained in the three previous letters from the plaintiff's attorney, except that which was contained in the paper, called the ‘proofs of loss,’ inclosed with his third letter, dated November 18th. We did not know, when we received that letter, that Mr. Buffington had violated any provision of his policy in respect to where he should reside or travel. When I wrote to the attorney my letter dated November 21, 1893, in which I called attention to the fact that one part of the proofs of loss states the death of Mr. Buffington at a different time than another, and suggesting that the words ‘as daughter’ be added to an answer, I did not know that any provision of the policy in respect to residence or travel had been violated. I did not suspect or believe, at that time, that any provision of the policy in that respect had been violated. * * * I believed that the policy had not been violated as to any of its terms.” The witness identified the proofs of loss shown him, and, referring to the question, “Did the deceased violate any condition of the above-mentioned policy in respect to residence, travel, occupation, use of spirituous liquors, dueling, suicide, violation of the law, or had he been convicted of felony?” to which the answer was, “No,” he testified that that was what led him to believe there had been no violation of the policy,--that he believed that the answer was true. The changes made in the proofs were by adding the words “as daughter” to the answer, “As beneficiary named in the policy,” in respect to the capacity or title in which the claimant made her claim, and the date in three places was changed from September 17th to September 16th, to make the statement of the claimant, the friend, and the undertaker correspond, as to the date of death, with the date in the certificate of the attending physician. Witness further testified:

That he was not an officer of the defendant company, but was a director, and was employed as general manager. That he had no authority to pass upon the validity of claims. No one has any such authority, except the board of directors and the finance committee, to whom has been delegated that power. That when he wrote to the claimant's attorney the letter dated December 27, 1893, declaring the policy forfeited, he had no information in regard to the violation of the policy in respect to travel and residence which he did not have when he wrote the letter suggesting that these corrections or changes be made in the proofs of loss. That he had no knowledge of any violation of the policy other than was contained in the correspondence. That the way he came to write that letter was, the proofs of loss were presented to the finance committee, and in looking over the proofs of loss carefully one of the members suggested that the policy might be violated, and that the claimant's answer, “No,” was not in fact true, and that the committee instructed witness to write a letter declining to pay, upon the ground that the policy had been violated by virtue of the insured having resided south of the thirty-second parallel. Being asked to point out in the proofs of loss what it was that was discovered which aroused his suspicions, his answer was that, “in Dr. Lyon's statement, in answer to the question, ‘Place and date of death,’ he says, ‘At his residence, Volusia county, Florida, September 16, 1893.’ Another question: ‘How long had you been his usual medical adviser?’ Answer: ‘About 2 years.’ Another question: ‘What had been his several occupations?’ And the answer was: ‘Manufacturing and orange grower.’ As to ‘place of residence,’ ‘Eau Claire, Wisconsin, and...