Modern Woodmen Acc. Ass'n v. Shryock

Decision Date17 March 1898
Citation74 N.W. 607,54 Neb. 250
PartiesMODERN WOODMEN ACC. ASS'N v. SHRYOCK.
CourtNebraska Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. Statements contained in an application for the issue of a policy of insurance will not be construed as warranties unless the provisions of the application and policy, taken together, leave no room for any other construction.

2. Whether an accident or a disease caused the death of a party, whose life was insured against death by accident, should be submitted to and determined by a jury, unless, with reference to that proposition, the proofs are so convincing that by them all reasonable men, in the fair exercise of their judgment, would be brought to adopt the same conclusion.

3. Where an accident insurance association introduced evidence of the statements of one of its members with reference to an accident which had happened to him some hours before the time of making such statements, it cannot complain because the same statements, made to other witnesses, were proved by the adverse party.

4. In an action for the recovery of the sum of $3,000 insurance on a certificate issued by a fraternal benefit association to one of its members, it cannot be permitted to urge that the said certificate limits the amount payable to the proceeds of an assessment of $2 on each member, and that there is, therefore, a question whether thereby $3,000 could be realized, in view of the fact that the statute to which such association owes its existence forbids it to issue a certificate of over $1,000 if it has not a membership of 2,000 in number.

5. The supreme court cannot assume that the rejection of written evidence was prejudicially erroneous when there is in the record before it no showing as to the nature of the evidence rejected.

Error to district court, Lancaster county; Hall, Judge.

Action by Celia V. Shryock against the Modern Woodmen Accident Association. Judgment for plaintiff. Defendant brings error. Affirmed.A. R. Talbot, for plaintiff in error.

J. H. Broady and A. N. Sullivan, for defendant in error.

RYAN, C.

This action was brought in the district court of Lancaster county, by Celia V. Shryock, to recover the amount of insurance existing in her favor by the terms of a certificate of membership, issued to her husband, whereby his life was insured against death by accident within 90 days. There was a verdict and judgment as prayed, and for the reversal of this judgment the association prosecutes these proceedings in error.

In the petition it was alleged that May 6, 1892, in consideration of $3 as a membership fee, paid by William B. Shryock for plaintiff, and of such future payments as might be required under defendant's articles of incorporation, the defendant had made and delivered to said William B. Shryock its policy and certificate of insurance on the life of said William B. Shryock, in the sum of $3,000, and that plaintiff was the wife of William B. Shryock, and was the beneficiary in said policy. It was further averred that on or about July 2, 1892, while said policy was in full force, said William B. Shryock received a personal injury in the city of Omaha, from which injury, shortly thereafter, the death of said William B. Shryock resulted. It was further alleged that due proof of the death of William B. Shryock had been made, but that defendant nevertheless had refused to pay or make an assessment for the payment of the amount due plaintiff, or any part thereof. There was a prayer for judgment in the sum of $3,000, with interest, which principal and interest equaled the sum for which the verdict was returned. The material portions of the answer were averments that William B. Shryock died of a disease not the result of any injury alleged to have been by him received; that there had been no compliance with the requirements of the policy as to proofs of injury; and that there had been no request for an assessment upon the members of defendant in good standing, under its rules, for the payment of the claim of plaintiff. It was further alleged that the defendant had never made an assessment upon its members for the payment of the claim set out in plaintiff's petition, and that defendant neither had nor would have in its possession any means wherewith to pay the same until such assessment should be levied and collected. There was in the answer the following language: “Further answering, the defendant alleges the fact to be that at the time of making the application for membership to the defendant, plaintiff's intestate, William B. Shryock, represented and warranted to the defendant, as a condition precedent, and as a basis upon which the policy sued on herein was issued, that he never had, nor was subject to, fits, disorders of the brain, or never had or was subject to any bodily or mental infirmity; that, relying upon said statements, representations, and warranty that said William B. Shryock did not then, or never did, have any bodily or mental infirmity, the defendant issued and delivered to him the certificate or policy of insurance sued on herein; but the defendant avers that, at the time of making said application and tendering to the defendant said statements and representations and warranties as aforesaid, said William B. Shryock did then have bodily and mental infirmities which would tend to shorten life, and which, in fact, did produce the death complained of in plaintiff's petition, and that by reason thereof there was a breach of said warranties and conditions precedent which made void the policy issued and sued upon herein, and although said William B. Shryock at that time represented and warranted to the defendant that he did not have any bodily or mental infirmity, yet the defendant charges the fact to be that at that time said William B. Shryock did have fatty degeneration of the heart, or heart disease, which would tend to shorten life, and from which weakness and defect of the heart he, the said William B. Shryock, died.” There was a reply in denial of each affirmative matter pleaded in the answer. On the trial there was submitted to the jury certain special interrogatories, which, with the answer to each, were as follows: (1) Did William B. Shryock, on or about the 2d day of July, 1892, meet with an accident in the city of Omaha, Nebraska, whereby he received external and violent bodily injury? Answer. Yes. (2) Did William B. Shryock, prior to and at the time of his death, have fatty degeneration of the heart? Answer. Yes. (3) If you answer that William B. Shryock received an accidental, external, and violent bodily injury, did that injury alone cause his death? Answer. Yes. (4) If you answer that William B. Shryock, prior to and at the time of his death, had fatty degeneration of the heart, did that disease alone cause his death? Answer. No. (5) What was the cause of the death of William B. Shryock? Answer. By violent bodily injury, he at the time having fatty degeneration of the heart.”

There was some conflict in the evidence, but, as the jury accepted as true that which tended to sustain the theory of plaintiff, it is unnecessary to consider any other in determining whether or not there was sufficient to sustain the special findings above quoted. James M. Robinson was a witness for the defendant in the district court, and testified that on July 1 or 2, 1892, he met William B. Shryock about half past 5 in the afternoon, and, by appointment, still later in the evening. The testimony of this witness in part was as follows: “Q. Now, did he say anything to you up to that time about slipping and hurting his leg? A. Yes, sir; he told me several times that his foot had slipped, and he had hurt his knee. Q. He told you several times during the two hours you were with him? A. Yes, sir. Q. What did you say he said about that? A. He said his foot had slipped, and that he had wrenched his knee, and that it was hurting him. Q. What knee was that? A. I think it was the left knee. I am not sure, but it was the same knee he had hurt before. Q. The same knee that was broken before? A. Yes, sir. Q. What did he say at that time about having recently removed the splints or bandages that the doctor had on the knee? A. He said he had been wearing a bandage, or a brace, or something, and that he had taken it off lately, or something to that effect. I don't know how recently he had taken it off.” William Darst, a witness for the plaintiff, testified that he saw William B. Shryock at the store of witness in Omaha about 8 o'clock in the evening of July 1, 1892; that Shryock looked to witness like a man about to faint, was pale and trembling, and complained that he had hurt himself; that in coming up from the depot he had slipped and partially fallen; and that it pained him terribly right over his right hip. He kept his hand rubbing his side, and acted as if he was sick in his stomach. He was spitting as if he was sick in his stomach. He remained over two hours from the time he came in. Usually witness closed up at 9 o'clock at night, but his reason for not closing at that time July 1, 1892, was given thus in his own language: “The condition he came in my store, and seeing that he was in pain, I stayed around an hour later than usual, thinking he would get better; and in fact he did get better. I wanted him to rest.” This witness accompanied Mr. Shryock to the Murray Hotel. William Anderson, clerk at that hotel, testified that William B. Shryock came to the hotel about 10 o'clock of the night of July 1, 1892, and witness, upon shaking hands with him, noticed that Shryock's hand was very cold. Upon being asked about his health, Shryock said he was not feeling well, and asked if witness could spare a boy to go out and get some capsules. These were procured, as was also some whisky, and he went to his room. Frank Wigginton, the boy who procured the capsules, testified that they were quinine capsules, and that he showed Mr. Shryock to his room. In the afternoon of July 2,...

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