McDermott v. Modern Woodmen of America, a Corp.

• Decision Date: 20 January 1903
• Citation: 71 S.W. 833,97 Mo.App. 636
• Parties: BERTIE McDERMOTT, Respondent, v. MODERN WOODMEN OF AMERICA, a Corporation, Appellant
• Court: Missouri Court of Appeals

71 S.W. 833

97 Mo.App. 636

BERTIE McDERMOTT, Respondent, v. MODERN WOODMEN OF AMERICA, a Corporation, Appellant

Court of Appeals of Missouri, St. Louis

January 20, 1903

Appeal from Clark Circuit Court.--Hon. Edwin R. McKee, Judge.

REVERSED.

Judgment reversed.

J. G Johnson and W. T. Rutherford for appellant.

(1) Appellant is a fraternal benefit society, as defined by the laws of Missouri, governing such societies. Sec. 1408, R. S 1899; Brassfield v. M. W. of A., 88 Mo.App. 208. (2) Any society, corporation or organization coming within the provisions of section 1408, Revised Statutes 1899, and doing business in this State under article 2, chapter 12, Revised Statutes 1899, is not subject to the general insurance laws of Missouri which include sections 7890 and 7891, and appellant issued its benefit certificate under said article and chapter. Whitmore v. Sup. Lodge, 100 Mo. 46; Laws of Missouri, 1897, p. 132; Hastings v Littledale, 150 Mass. 100; Bacon on Benefit Societies, par. 50; Hanford v. Mass. Ben. Ass'n, 122 Mo. 50; Elliott v. Life Ins. Co., 163 Mo. 132, and cases cited. (3) Where, as in the case at bar, the insured in his application warrants the statement therein to be true, and agrees that any untrue statement or any concealment of facts may forfeit all rights under the contract, and the insured as part consideration of the contract agrees that the statements made in the application are the basis of the contract of insurance, and are warranted to be true in all respects, all the representations are warranties, and any representation, whether material or immaterial, will avoid the policy. Joyce on Ins., secs. 1842, 1944, 1970; Baumgart v. M. W. of A., 55 N.W. 713; Whitmore v. Sup. Lodge, 100 Mo. 47; Leinz v. Ins. Co., 8 Mo.App. 364. (4) Where there is no controversy as to the facts, the verdict of the jury should be directed by the court. Hoster v. Lange, 80 Mo.App. 234; Bank v. Bank, 151 Mo. 320.

Charles Hiller, Whitesides & Yant and James C. Davis for respondent.

(1) Rules as to the construction of contracts of insurance: American Surety Co. v. Pauly, 170 U.S. 133, 18 S. C. R. 552; Mutual Reserve Ass'n v. Farmer, 47 S.W. 850; Provident Life Soc. v. Reutlinger, 25 S.W. 836; Association v. Gillespie, 110 Pa. St. 84, 1 A. 340; Wilkinson v. Ins. Co., 30 Iowa 119; Ins. Co., v. Wilkinson, 13 Wall. 222. (2) A provision in a contract requiring an impossibility will not be enforced. Eggleston v. Ins. Co., 65 Iowa 315; Bumstead v. Ins. Co., 12 N.Y. 92; Ins. Co. v. Boykin, 12 Wall. 436; Peele v. Provident Society, 44 N.E. 663. (3) In construing the question and answer in the application, "Have you within the last seven years been treated by or consulted any physician, or physicians, in regard to personal ailment?" the true construction of the term, "personal ailment," as used in the application for insurance, does not refer to a trifling, temporary disorder, not serious in its nature. Brown v. Ins. Co., 65 Mich. 306, 32 N.W. 610; Hann v. National Union, 97 Mich. 513, 56 N.W. 834; Plumb v. Life Ins. Co., 65 N.W. 612; Billings v. Life Ins. Co., 41 A. 517.

GOODE, J. Bland, P. J., and Reyburn, J., concur.

OPINION

GOODE, J.

On March 16, 1901, the appellant, the Modern Woodmen of America, which is a fraternal insurance company (or this case was tried on that theory) organized under the laws of the State of Illinois, issued a benefit certificate to Robert L. McDermott, in favor of the respondent, Bertie McDermott, for the sum of two thousand dollars. The certificate or policy was issued in Clark county, Missouri, the appellant company having complied with the laws of this State and being entitled to do business in it.

McDermott died in the city of St. Louis October 18, 1901, after a surgical operation intended to relieve him from a malignant tumor on his neck; and the defendant company having refused to pay the amount called for in the benefit certificate, the present action was instituted to recover it.

The defense is based on alleged false answers to certain questions propounded to the deceased in his application for insurance, which answers are asserted to have been warranties of the truth of the matters stated in them.

Those questions and answers were as follows:

"14. Have you within the last seven years been treated by or consulted a physician or physicians in regard to personal ailment? No. If so, give dates, ailment, and physician or physicians name and address.

"15. Are you now of sound mind and health and free from disease and injury, of good moral character and exemplary habits? Yes.

"16. Have you ever had any local disease, personal injury or serious illness? No."

No showing was made that the answer to question sixteen was false other than was included in the proof relating to the answer to question fifteen. It was proven that on the ninth day of February, prior to the issuance of the certificate in March, McDermott had consulted Dr. Bridges of the town of Kahoka, complaining of pain in the stomach and indigestion, and that said physician gave him a prescription. On the twenty-third day of February, McDermott made the same complaints and was given the same prescription, which was one commonly administered for indigestion. He afterwards called in Dr. Bridges on the fifteenth day of April, who found him at his home suffering from liver complaint and Dr. Bridges treated him from that time until a short time before he died. There was testimony tending to prove he had cancer of the stomach, from which developed the malignant tumor on his neck under the point of the jaw, and that he died from exhaustion, partly caused by his disease and partly by the surgical operation. There was also testimony that McDermott looked healthy when he took the insurance, was able to do hard and continuous labor and was regarded by his acquaintances as a healthy man; that the appellant's physician examined him and recommended him as a first-class risk. It was also testified by a physician that no one could say whether or not the disease that killed him was present in an incipient state when he was prescribed for in February.

Appellant contends the foregoing proof showed conclusively the falsity of the answers made by McDermott to questions fourteen and fifteen in his application; while the respondent insists that the testimony showed McDermott's illness, when he consulted Dr. Bridges in February before taking the insurance in March, was of so trifling a nature as not to constitute a personal ailment, local disease or serious illness within the meaning of the application, or, at all events, it was for the jury to say whether he did or did not answer falsely and whether there had been a breach of warranty, if the answers in the application amounted to warranties.

The trial court took the respondent's view of the matter and gave, at the latter's request, the following instructions over the objection of appellant.

"1. In construing the proposition as to whether or not the plaintiff's deceased husband had been treated by or consulted a physician, as contemplated in the application for the contract of insurance sued on, you are instructed that merely calling into a doctor's office for medicine to relieve a temporary indisposition, not serious in its nature, or consulting concerning some indisposition of a trivial nature, would not be being treated by or consulting a physician as contemplated in the said application.

"2. One of the defenses relied upon by defendant in this case is that the applicant falsely answered the following question in the application upon which the contract of insurance sued on was issued, to-wit: 'Are you now of sound body, mind and health, free from disease or injury?' This question was answered 'Yes.' The jury are instructed that sound body, mind and health and free from disease or injury means that at the time of the application the insured had no grave, important or serious disease. It means a state of health free from any disease or ailment that affects the general soundness and healthfulness of the system generally, and not a mere indisposition which does not tend to weaken or undermine the constitution of the insured. A mere temporary ailment or indisposition which does not tend to weaken or undermine the constitution at the time of making the application would not render a policy void.

"3. The jury are instructed that, practically speaking, a disease must have some time of commencement. On one day the victim may be free from disease, and on the next day the disease may be said to have commenced. There may be bacilli or premonitory symptoms of a disease, yet it may not have progressed so far as to be actually termed a disease. So in this case, in the months of February and March, prior to the taking of the application and delivery of the policy in this case, there may have been premonitory symptoms of the disease that would not arrive at the importance of the disease itself; and you are therefore instructed that the mere premonitory symptoms could not in the first instance be recognized as the existence of a specific disease."

This instruction asked by appellant was refused:

"a. In the application made by McDermott (which is undisputed) for the benefit certificate sued on, the said McDermott was asked in said application the following direct and specific question: 'Have you within the last seven years been treated by or consulted any physician or physicians in regard to personal ailment?' and in answer to said question said McDermott answered 'No.' And if the jury believe from the greater weight of the evidence in the cause that said answer was not full, complete and literally true, then the plaintiff can not recover in this case, and it is immaterial as to whether or not such ailment...