McHenry v. Royal Neighbors of America
| Decision Date | 22 May 1922 |
| Parties | THOMAS S. McHENRY, Respondent, v. ROYAL NEIGHBORS OF AMERICA, Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Bates County.--Hon. C. A. Calvird Judge.
AFFIRMED.
Judgment affirmed.
T. W Silvers for respondent.
Benjamin D. Smith and Humphrey & Boxley for appellant.
--This is a suit to recover on a fraternal beneficiary certificate issued by defendant on the life of plaintiff's wife.
Defendant is a fraternal benefit association organized under the laws of the State of Illinois and legally authorized to do, and doing business in the State of Missouri. Charlotte Elizabeth McHenry, wife of plaintiff, applied for membership in defendant association at the town of Foster in Bates County Mo. on March 29, 1915. A certificate of insurance in the sum of $ 500 was issued to her April 22, 1915, in which plaintiff was named as beneficiary. The insured died December 29, 1919, of acute Bright's disease, and proofs of death were furnished upon blanks prepared by defendant association. Defendant denied liability and declined to pay the loss. Plaintiff sued on the benefit certificate and defendant pleaded misrepresentation in the application for the certificate.
The petition charged formal matters which tend to show the corporate description and existence of defendant and that defendant issued to deceased benefit certificate No. 353817, which insured her against death in the sum of $ 500, and that deceased was a member of Violet Camp No. 2825, at Foster, Mo.
Further the petition alleges that deceased performed all of the things necessary on her part to be kept and maintained her certificate in force during her lifetime, and that the same was in force and effect at the time of her death; That defendant was duly notified by plaintiff of the death of the certificate holder, according to the terms and provisions of the said benefit certificate, and that defendant has refused to pay plaintiff the sum of $ 500, or any other amount, on the ground that misrepresentations were made by deceased in her application for insurance as to her physical condition prior to, and at the time of such application. The petition further states that there were no misrepresentation made by the applicant that would warrant the defendant in refusing to pay plaintiff, but on the contrary, the facts set forth in the application of the insured were substantially true. Judgment is prayed for the face of the certificate.
The answer admits the corporate existence of defendant, the issuance of the benefit certificate, the consideration and covenants upon which the said certificate was issued; the date of death of the certificate holder, due notification of death, and that among other reasons for denying plaintiff's claim and refusal to pay the amount of the certificate was the fact that, in her application for insurance, Charlotte Elizabeth McHenry had made misrepresentations as to her physical condition at and prior to the time of such application, all as set out in the petition.
The answer denies (1) that the insured performed all the provisions necessary on her part to keep and maintain the policy in full force and effect during her lifetime; (2) that the benefit certificate was in full force and effect at the time of the death of the insuerd; (3) that insured made no misrepresentations in her application for membership; (4) that the misrepresentations admittedly made by insured were insufficient in law to warrant defendant in refusing to pay plaintiff the amount demanded and that the application of insured contained matter, answers and statements that were substantially true.
And as an affirmative defense, the answer avers (1) that defendant is a fraternal association without capital stock, and that it was organized and is carried on for the mutual benefit of its members and not for profit; (2) that defendant has a supreme governing, or legislative body, composed of delegates elected by subordinate bodies which promulgates laws, rules and regulations governing all subordinate lodges; (3) that defendant has a constitution and by-laws providing an adequate scheme of government; (4) that the Violet Camp of Foster, Mo., was and is operating as a part and branch of this general scheme.
Further the answer states, among other things that the benefit certificate issued to the insured contained stipulations, in effect, as follows: That she accepted the certificate and agreed to all the conditions therein contained, and warranted that she was in good health on receiving it; that she accepted same under the conditions enumerated on the back thereof, one of which is that the application and medical examination are made a part of the contract for insurance, and "Second: That should said application, and each and every part thereof, not be literally true, then this benefit certificate shall, as to the member, the beneficiary or beneficiaries, be absolutely null and void." That the following questions were propounded, and the answers thereto made by the applicant:
"18a. Have you within the last seven years consulted any person, physician or physicians in regard to personal ailment? No.
.... .... ....
"21a. Have you within the last three years used any patent or proprietary medicine? No.
.... .... ....
The answer then avers that the foregoing answers were false and untrue, and that if the truth thereof had been known to defendant, the benefit certificate would not have been issued herein; that no contract ever existed between defendant and Charlotte Elizabeth McHenry whereby plaintiff herein acquired or became entitled to any rights of any kind or character, and particularly any right to participate in the benefit fund of defendant.
The reply was a general denial.
On the issues thus made the cause went to trial to a jury. At the close of plaintiff's evidence and again at the close of all the evidence, defendant asked a peremptory instruction in the nature of a demurrer to the evidence, both of which the court refused. Verdict was for plaintiff and defendant appeals.
In its assignments of error, defendant urges that the court erred in refusing to give the peremptory instructions asked at the close of plaintiff's case and at the close of all the evidence. These are the only points urged in behalf of this appeal and they will be considered as one.
Defendant argues that the applicant, as part of the consideration for insurance, declared and warranted as literally true, the answers in her application, and states that if said answers were not literally true the benefit certificate is null and void; that a warranty is part of the contract and must be strictly true, whether material to the risk or...
To continue reading
Request your trial