McGowan v. Supreme Court of Indep. Order of Foresters of Toronto, Canada

• Decision Date: 12 October 1900
• Citation: 83 N.W. 775,107 Wis. 462
• Parties: MCGOWAN v. SUPREME COURT OF INDEPENDENT ORDER OF FORESTERS OF TORONTO, CANADA.
• Court: Wisconsin Supreme Court

107 Wis. 462

83 N.W. 775

MCGOWAN

v.SUPREME COURT OF INDEPENDENT ORDER OF FORESTERS OF TORONTO, CANADA.

Supreme Court of Wisconsin.

Oct. 12, 1900.

Appeal from circuit court, La Crosse county; O. B. Wyman, Judge.

Action by Addie McGowan against the Supreme Court of the Independent Order of Foresters of Toronto, Canada. From a judgment for plaintiff entered on a special verdict, defendant appeals. Reversed.Mylrea & Bird, for appellant.

Fruit & Gordon, for respondent.

CASSODAY, C. J.

This is an action to recover insurance upon a certificate of membership of Edward Pion in the defendant company dated June 3, 1896. The case was here upon a former appeal. 104 Wis. 173, 80 N. W. 603. It appears from the record, and is undisputed, that Edward Pion made a written application for such membership May 4, 1896, upon a blank of the defendant, in which he answered several questions, to the effect that he was then in good health, and had never had pleurisy, inflammation of lungs, acute bronchitis, chronic catarrh, diseases of throat or air passages, shortness of breath, spitting blood, chronic cough, or consumption; (66) that he had no diseases during the last five years for which he needed the attendance of a physician (104 Wis. 184, 80 N. W. 603); (78) that he had never had acute or inflammatory rheumatism; (113) that his father died at the age of 64 years; (114) that he did not remember the cause of his death; (115) that he was ill two or three weeks; (116) that his previous health was good; (120) that his mother died at the age of 58 years, (121) of inflammation of the bowels, (122) and was ill two weeks; (128) that none of his brothers were dead; (134) that none of his sisters were dead; (138) that his paternal grandfather was killed in the army; (140) that his maternal grandfather was killed in the army; (143) that none of his grandparents or uncles or aunts or near relatives had been afflicted with inflammatory or acute rheumatism, or insanity or epilepsy, or consumption or other tubercular disease, or scrofula or cancer, or with any other constitutional or hereditary disease, or committed or attempted to commit suicide; (157) that he thereby affirmed and declared that the answers to each and all of such questions, and also those made to the medical examiner, were true and correct, and that no intentional omission, concealment, or mental reservation had been made of any material fact or circumstances relating to his past or present health, habits, or condition, or to his family history, and he thereby agreed that the questions and answers therein contained should form a part of his contract with the defendant. “[Signed] Edward Pion, Applicant. Witnessed: H. F. Gunn, M. D.” The defendant's medical examiner reported to the defendant, under the same date, to the effect that, after carefully examining the applicant, he was satisfied that the applicant was free from any tendency to cough or difficulty of breathing, or any other local or constitutional disease which would naturally affect the risk; that he believed the applicant's answers to the questions mentioned were full and true; that he considered him a first-class risk, and recommended him to membership in the company. The certificate of insurance issued upon such application June 3, 1896, omitting marginal and head declarations and immaterial parts, is as follows, to wit: “In consideration of the application for membership, and of the agreements and statements therein contained, and of the statements, representations, and declarations contained in the medical examination paper (in so far as * * * material to the contract), and in consideration, also, of the warranty of the applicant that the same, being material to the risk, are in all respects true and correct, and in consideration, also, of the provisions of the constitutions and laws enacted by the Supreme Court of the Independent Order of Foresters, and of any and of all amendments thereto adopted from time to time by the said the supreme court, and in consideration, also, of the declarations and promises contained in the obligation taken by initiates in subordinate courts (each of which, the said application for membership, the medical examination paper, the constitutions and laws, and the said obligation, are hereby referred to by the parties hereto and made a part of this contract), and upon the faith and credit of all and each of which agreements, statements, promises, representations, provisions, and declarations, and in consideration of the payment by the applicant, at the times required, of any and of all the assessments, dues, fees, capitation tax, and fines required by the said constitutions and laws to be paid on account hereof, this benefit certificate is issued.” On the back of such certificate the applicant thereby expressly agreed, in writing, to the conditions of the benefit certificate therein and thereon, and that he was bound thereby; and he agreed that the constitutions and laws, as well as the amendments thereto which might be adopted from time to time by such company, should be a part of such contract. Edward Pion died February 9, 1898, and April 25, 1898, this action was commenced to recover such insurance. Issue being joined, and trial had, the jury at the close thereof returned a special verdict to the effect (1) that Edward Pion's paternal grandfather died at the age of 55 years; (2) that his maternal grandfather died at the age of 50 years; (3) that his father died at the age of 61 years; (4) that Edward Pion's answer as to the age at which his father died was not true and correct, (5) but such answer was not any intentional omission, concealment, or mental reservation on the part of Edward Pion; (6) that Edward Pion's father was ill prior to his death about six weeks; (7) that his answer as to the duration of his father's illness was not true and correct, (8) but that such answer was not any intentional omission, concealment, or mental reservation on the part of Edward Pion; (11) that Edward Pion's mother died at the age of 61 years; (12) that his answer as to the age at which his mother died was not true and correct, (13) but that such answer was not an intentional omission, concealment, or mental reservation on the part of Edward Pion; (16) that Edward Pion's answer as to the cause of his mother's death was not true and correct, (17) but that such answer was not any intentional omission, concealment, or mental reservation on the part of Edward Pion; (18) that Edward Pion's answer as to the number of sisters dead was not true and correct, (19) but that such answer was not an intentional omission, concealment, or mental reservation on the part of Edward Pion; (20) that Edward Pion's answer as to the number of brothers dead was not true and correct, (21) but that such answer was not an intentional omission, concealment, or mental reservation on the part of Edward Pion; (22) that Edward Pion's answer that he was in good health at the present time was true and correct; (25) that Edward Pion's answer that he had never had pleurisy and the other diseases mentioned was true and correct; (27) that Edward Pion's answer that he had had no diseases during the last five years for which he needed the attendance of a physician was true and correct; (29) that the health of Edward Pion's father was good previous to the last illness causing his death; (31) that ...