Miller v. The National Council of The Knights and Ladies of Security

• Decision Date: 12 October 1918
• Docket Number: 21,749
• Citation: 175 P. 397,103 Kan. 579
• Parties: ELIZABETH MILLER et al., Appellees, v. THE NATIONAL COUNCIL OF THE KNIGHTS AND LADIES OF SECURITY, Appellant
• Court: Kansas Supreme Court

175 P. 397

103 Kan. 579

ELIZABETH MILLER et al., Appellees, v. THE NATIONAL COUNCIL OF THE KNIGHTS AND LADIES OF SECURITY, Appellant

No. 21,749

Supreme Court of Kansas

October 12, 1918

Decided July, 1918.

Appeal from Leavenworth district court; JAMES H. WENDORFF, judge.

Cause reversed and remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. BENEFIT INSURANCE--Pleadings--Reply--No Substantial Departure. The reply examined, and held not to amount to such a departure as to warrant a reversal.

2. SAME--Trial--Improper Question. An objection to a question calling for the conclusion of a witness was rightfully sustained.

3. SAME--"Corporal Appearances"--Indication of Health. "Corporal appearances and conduct as indications of the inward health or lack of it are relevant."

4. SAME--Hypothetical Question--Omission of One Fact--No Material Error. The omission of one fact from the hypothetical question propounded to one of several witnesses did not constitute material error.

5. SAME--Demurrer to Evidence--Properly Overruled. The demurrer to the plaintiffs' evidence was properly overruled, and requests for instructions raising the same question as such demurrer were properly refused.

6. SAME--Instructions. An instruction as to the necessity of concurrent delinquency, suspension, and bad health was not erroneous.

7. SAME--Instructions--Forfeiture--Proof. In view of the issues raised by the pleadings, no error was committed by charging that the defense must be proved by the greater weight of the evidence, and that the defense of forfeiture must be established by clear and satisfactory proof.

8. SAME--Nonpayment of Dues--Reinstatement--Condition of Health. To entitle the member to reinstatement, she must, aside from slight troubles or infirmities not usually ending in serious consequences, have been in fact free from any disease or ailment which tended seriously or permanently to weaken or impair her constitution.

9. SAME--Instruction Relating to "Good Health" Erroneous. It was error to instruct that if the insured enjoyed such good health and strength as to justify the reasonable belief that she was free from derangement of organic functions or symptoms, and to ordinary observation or outward appearance her health was reasonably what might have been expected, the requirements as to good health were satisfied.

10. SAME--Interest on Amount of Certificate. It was not error as against the defendant to allow interest from the date of filing proofs of death.

George R. Allen, of Kansas City, and Benjamin F. Endres, of Leavenworth, for the appellant; A. W. Fulton, of Chicago Ill., of counsel.

A. E Dempsey, of Leavenworth, for the appellees.

OPINION

WEST, J.:

The defendant appeals from a judgment recovered on a membership certificate issued to the plaintiffs' mother, and complains principally of a departure in the pleadings, of error in the admission of testimony and giving and refusing to give instructions.

The petition pleaded full performance of all the conditions precedent, the answer alleged a breach of warranty by delay in making payments and an attempt to reinstate the insured to membership when she was not in good health, and the reply pleaded waiver and estoppel. There was a motion to strike and a motion to elect, and both were overruled. Upon the theory that any delays in payment, or questions as to reinstatement, had been waived, it was proper to allege in the petition that the conditions of the certificate had been complied with, plaintiffs not being required to know in advance that the defendant would claim otherwise. Such questions having been raised by the answer, the reply which asserts an inability by reason of waiver and estoppel does not amount to such a departure as to warrant a reversal. (Benefit Association v. Wood, 78 Kan. 812, 98 P. 219; Savage v. Modern Woodmen, 84 Kan. 63, 113 P. 802; Fritts v. Reidel, 101 Kan. 68, 165 P. 671; Bank v. School District, 102 Kan. 98, 169 P. 202.)

The financier of the local council was asked whether the deceased had been in suspension more or less than sixty days when she made payment of her assessment for August and September on October 3, 1916. This was objected to as calling for a conclusion, as incompetent, irrelevant, and immaterial, and assuming what the record might show, which objection was sustained. The witness had already produced account books showing when the various assessments had been paid. The question called for the conclusion of the witness upon a matter for the jury to determine, and, moreover, the desired evidence was not produced on the motion for new trial, hence no error can be predicated on the ruling. (Kuhn v. Johnson, 91 Kan. 188, 137 P. 990; Maris v. Street Railway Co., 98 Kan. 205, 158 P. 6; Imel v. Railway Co., 100 Kan. 130, 163 P. 807.)

Neighbors who were well acquainted with the deceased were permitted to testify that she appeared to be in vigorous health, and that on one occasion she did not appear to be tired. This testimony was competent, not on the theory that healthful appearance was sufficient, but for the reason that one who acts and appears to be free from disease might properly, in the absence of other testimony, be presumed to possess good health, and for the further well-known reason that serious impairment of health is ordinarily manifested by the appearance and observable condition of the patient. "Corporal appearances and conduct as indications of the inward health or lack of it are relevant." (1 Wigmore on Evidence, § 223.)

Complaint is made that certain hypothetical questions did not include all the facts set forth in the evidence. The omitted fact referred to had reference to a statement in the proofs of death, "History of hemorrhage 6 weeks previous to operation." These proofs were signed by Drs. Lloyd and Smith, Dr. Lloyd being assistant in the operation from the shock of which the deceased died. Dr. Smith, when on the stand, was not asked expressly about this matter, except by assuming that there was a history of hemorrhage and by asking if any sort of growth would be likely to produce one. The omission occurred in the examination of one physician, Dr Darrah, and while it might well have been included, the failure so to do...