McGowan v. Supreme Court of Indep. Order of Foresters

• Decision Date: 20 October 1899
• Citation: 104 Wis. 173,80 N.W. 603
• Parties: MCGOWAN v. SUPREME COURT OF INDEPENDENT ORDER OF FORESTERS.
• Court: Wisconsin Supreme Court

104 Wis. 173

80 N.W. 603

MCGOWAN

v.SUPREME COURT OF INDEPENDENT ORDER OF FORESTERS.

Supreme Court of Wisconsin.

Oct. 20, 1899.

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. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This is an action upon a benefit certificate issued by the defendant to one Edward C. Pion, on the 3d day of June, 1896; the said Pion being then a charter member of Court Desota, located at Galena, Ill., and the defendant being a fraternal association issuing life insurance certificates to its members upon the assessment plan. The certificate, when issued, was made payable to one Frances Heid, the affianced wife of said Pion. The complaint alleges that on January 31, 1898, Pion duly changed the beneficiary, in accordance with the rules and regulations of the order, and thereby made his insurance payable to the plaintiff, his sister, and that Pion died February 9, 1898. The amended answer admits the issuance of the certificate of insurance, and the death of the insured, and the furnishing of sufficient proofs of death, but denies that the beneficiary was ever changed, and, further, sets up the defense of false statements made by the insured in his application for insurance, by which the policy was avoided. The rules of the order prescribing the manner in which the insured may make a change of beneficiary were put in evidence, and they provide, in substance, that such change may be made in the following manner: (1) By filing a written application with the local court for such change; (2) paying a fee of 50 cents; (3) surrendering the old certificate; (4) furnishing satisfactory evidence that he, and not the beneficiary, has paid the assessments; (5) whereupon the local court shall cause the application, duly certified by the court officers and sealed, to be transmitted, with the certificate, to the head office; (6) on the receipt of which, if approved by the supreme chief ranger, the supreme secretary shall incorporate in the certificate the desired change. The rules further provide that, upon the issuance of the second certificate, the first should thereby become null and void, and that no certificate should be assigned, nor the beneficiary changed, except in the manner so provided. The rules further provide that, upon proof of death and allowance of the claim, the remittance should be sent from the head office to the court officers, to be delivered to the beneficiary on the surrender of the certificate; and provide that, if satisfactory proof of its loss or destruction or other satisfactory cause for its nonsurrender should be furnished, the remittance might be delivered, upon execution of a proper release of all claims. It appears by the evidence that the insured removed from Galena, Ill., to La Crosse, Wis., some time after the issuance of the original certificate, and lived with the plaintiff, his sister; that on the 23d of December, 1896, and prior to such removal, he made a written application to the local court for a payment to him of $1,000, on the ground that he was totally and permanently disabled from following any business, and stated that such permanent disability resulted from tubercular disease of the lungs. This application was accompanied by a certificate of the officers of the local court stating their belief that the statements of the insured were correct, and also by a statement of the court physician stating that he had examined the insured, and found that he was permanently disabled, as the result of bronchial and pulmonary irritation and the common symptoms of incipient pulmonary tuberculosis. This application was made under a provision of the certificate which, under a clause of the certificate, provided for the payment of $1,000 to the insured in case of total and permanent disability. The certificate further provided for the payment of $2,000 to the beneficiary upon the death of the insured, less any sums which had been previously paid on account of permanent disability. This claim was not allowed. The insured was a railroad brakeman, running on the Chicago, Burlington & Northern Railroad. He entered the road's service in September, 1894, as a brakeman on the main line, with headquarters at La Crosse, and was transferred to the Galena branch, with headquarters at Galena, in December, 1894, where he remained until July 1, 1895, when he returned to the main line, and so remained until January, 1896, when he went back again to the Galena branch, where he remained until December, 1896, at the time of making his application for benefits on the ground of permanent disability. He then ceased work on account of sickness, and went to Colorado, from where he returned in April, 1897, and went to work again for the railroad company as flagman, until October, 1897, when he ceased to work on account of sickness. From October, 1897, until his death, February 9, 1898, he seems to have lived in La Crosse with the plaintiff, his sister. The head of the defendant order is called the “Supreme Chief Ranger,” and he has his office at Toronto, Canada. In January, 1898, one Robert Kidney, a deputy of the supreme chief ranger, whose business, under the rules of the order, is to incorporate subordinate courts, look after those already in existence, and generally to represent the supreme chief ranger in that respect, came to La Crosse, and saw the insured, on the 31st of January, at the home of his sister. The insured on that day told him that he wished to change the beneficiary in his certificate, and make the policy over to his sister, the plaintiff. Mr. Kidney produced the proper blank, and it was filled out, the 50 cent fee was paid, and the application was at once transmitted to the local court at Galena for the signature of the court officers and the seal. The certificate was not surrendered, because it was then in the possession of Frances Heid, at Galena. The application reached Galena, and the proper certificate was placed thereon by the officers of the court, and the sum was transmitted to the supreme chief ranger, and reached him February 7, 1898. The original certificate reached Mr. Pion on the 7th or 8th of February, but in what manner it was obtained from Miss Heid does not appear. He immediately delivered it to Kidney, who, on the morning of the 9th of February, being the day of Pion's death, mailed it to the proper officers at Toronto, where it was received February 11th; Pion having died, as before stated, February 9th. No new certificate was ever issued, nor does it appear that the original certificate was ever returned.

Prior to the issuance of the original certificate, and on the 4th day of May, 1896, the insured underwent a medical examination at the hands of the court physician at Galena, Ill., who, after such examination, made favorable answers to 30 questions regarding the physical condition of Pion, and recommended him as a first-class risk. The insured also made answers to 157 questions with regard to his physical condition and his family history, and it is charged that the answers to a number of these questions were false, and that the insurance is invalid thereby. These questions and the answers will be more fully discussed in the opinion, and therefore it is unnecessary to set them forth at length here. The concluding paragraph of said statement contained the following affirmation: “I hereby affirm and declare that the answers to each and all of the above questions, also those made to the medical examiner, are true and correct, and that no intentional omission, concealment, or mental reservation has been made of any material fact or circumstance relating to my past or present health, habits, or condition, or to my family history, and I agree that the questions and answers herein contained shall form a part of my contract.” The certificate contains the following provision: “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 the said agreements, statements, representations, and declarations are material to the contract), and in consideration, also, of the warranty of the applicant that the same, being material to the risk, are true and correct, * * * 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 of all assessments, dues, fees, capitation tax, and fines, this benefit certificate is issued,” etc.

A special verdict was submitted to the jury, which, with its answers, is as follows: “(1) Was the statement in Exhibit No. 6, as to the cause of the death of the mother of insured, material to the contract? Ans. No. (2) Was the statement in Exhibit 6, as to the cause of the death of the mother of the insured, substantially true? Ans. Yes. (3) Was the statement in Exhibit No. 6, as to number of sisters of insured dead, material to the contract? Ans. No. (4) Was the statement in Exhibit No. 6, as to what diseases insured had been attended for by physician during the previous five years, material to the contract? Ans. by the Court: Yes. (5) Was the answer of the deceased to question 66 in Exhibit 6, ‘What diseases have you been attended by a physician for during the last five years?’ imperfect? Ans. Yes. (6) Was the statement in Exhibit No. 6, as to whether insured was in good health at the time, material to the contract? Ans. by the Court: Yes. (7) Was the statement in Exhibt No. 6, as to the previous health of the father of insured, material to the contract? Ans. by the Court: Yes. (8) Stricken out. (9) Was...