Modern Woodmen of America v. Angle

• Decision Date: 25 June 1907
• Citation: 104 S.W. 297,127 Mo. App. 94
• Parties: MODERN WOODMEN OF AMERICA v. ANGLE et al.
• Court: Missouri Court of Appeals

104 S.W. 297

127 Mo. A. 94

MODERN WOODMEN OF AMERICA v. ANGLE et al.

St. Louis Court of Appeals. Missouri.

June 25, 1907.

1. NEW TRIAL — ORDER — WHAT CONSTITUTES.

In a suit for cancellation of a benefit certificate, the court, at the same term, in response to plaintiff's motion to set aside the verdict, and for a new trial, after judgment for defendant, filed an order that the motion was sustained "to the following extent," that the decree dismissing plaintiff's bill and the court's general finding for defendants should be set aside, and that plaintiff assumed the risk insured against, and then found that insured in his application did not make true answers as to his physical condition, and decreed the cancellation of the certificate. Held, that such order did not grant a new trial, but was merely a correction of an erroneous judgment, which the court had plenary power to make at the same term.

2. WITNESSES — PHYSICIANS — DISQUALIFICATION — WAIVER.

Where insured signed an application for benefit insurance, in which he expressly waived for himself and his beneficiaries the benefit of all laws disqualifying any physician from testifying concerning any information obtained in a professional capacity, neither insured nor his beneficiary could object to the testimony of a physician whom insured had consulted professionally as to his examination, for the purpose of showing misstatements in insured's application for insurance, which would be otherwise privileged, as provided by Rev. St. 1899, § 4659 [Ann. St. 1906, p. 2539].

3. CANCELLATION OF INSTRUMENTS — PLEADING AND PROOF.

In a suit to cancel a benefit certificate for alleged misstatements in an application concerning insured's previous health, it was not necessary for complainant to plead a waiver in the application of insured's right to object to the testimony of physicians he had consulted concerning his prior physical condition to entitle him to avail himself of such waiver.

4. INSURANCE — ESTOPPEL OF INSURER.

Where C., who was insured's family physician, was also insurer's medical examiner when he examined insured for insurance, and was authorized to determine the materiality of the answers made to the questions propounded in the application, and in making such examination C. wrote such answers as he deemed material, without insured's knowledge, insured having signed the application without reading it, the insurer was estopped from asserting the falsity of the answers so written as a breach of warranties contained in the application, in so far as C. possessed the facts as to the matters concerning which he attempted to answer.

5. SAME — CONDITION PRECEDENT — TRUTHFULNESS OF ANSWERS.

An application for a benefit certificate requested insured to answer whether within seven years he had consulted a physician as to personal ailment, and, if so, to give dates, ailment, duration of attack, physicians' names and addresses, and whether the recovery was complete. The application provided that the answers should be treated as warranties, and the certificate made the application a part thereof, and provided that the same should be void if the answers were not true. Held, that the truthfulness of the answer to such question was a condition precedent to the enforcement of the contract, so that, insured having omitted to disclose that he had consulted a certain physician for hemorrhages 60 days before the application, it avoided the certificate.

6. EVIDENCE — PAROL EVIDENCE — INSURANCE POLICY.

Notwithstanding the rule that parol evidence is inadmissible to vary a written contract, insured may show by parol that the answers to the questions in his application for insurance were not written by him, and that he did not actually know the contents of the application when he signed it.

7. INSURANCE — APPLICATION — WARRANTIES — ESTOPPEL.

Insured signed an application prepared by insurer's medical examiner, who was also insured's family physician, without reading it. The application contained misstatements concerning insured's physical condition, and did not disclose his treatment by a certain physician. The application made the statements warranties, and the certificate, when issued, recited that it was issued in consideration of the warranties and agreements contained in the certificate and application, and that insured warranted the literal truth of every part of the application. The certificate also contained a provision which insured was required to sign, attesting the same and agreeing to all the conditions therein contained. Held, that inasmuch as the defendant insured signed the application, which application was attached to and made a part of the certificate of insurance, and afterwards signed, accepted, and retained for a considerable length of time the certificate, with a copy of the application annexed thereto, he was charged with notice of the untrue answers in the application and estopped to deny the same.

8. CANCELLATION OF INSTRUMENTS — INSURANCE CERTIFICATE — TENDER OF PREMIUMS.

In a suit to cancel an insurance certificate for breach of warranty in the application, it was not necessary that complainant should deposit in court for defendants' benefit the amount of assessments paid, with interest; the court being authorized to require such payment as a condition to a decree of cancellation under complainant's prayer for general relief.

9. SAME — INSURANCE — CERTIFICATE — CANCELLATION — REPAYMENT OF PREMIUMS — INTEREST.

In a suit for the cancellation of a benefit certificate for breach of warranty in an application, defendants were not only entitled to repayment of the premiums paid on the certificate, but were also entitled to interest thereon at 6 per cent.

Appeal from Louisiana Court of Common Pleas; David H. Eby, Judge.

Suit by Modern Woodmen of America against Henry Clay Angle, deceased, and another, revived after his death in the name of Amanda Angle, as executrix of his estate. From a judgment for plaintiff, defendants appeal. Affirmed.

Matson & May, for appellants. B. D. Smith, R. M. Tunnell, and E. E. Campbell, for respondent.

NORTONI, J.

This suit is in equity, and seeks the cancellation of a benefit certificate issued by the plaintiff fraternal society to the insured defendant, and payable in event of his prior death to the other defendants, who are the wife and daughter of the insured. It appears the insured defendant has departed this life since the appeal was perfected his death has been suggested in this court, and the case now stands revived in the name of Amanda Angle, his widow and administratrix.

It is alleged in the bill, in substance, that the insured defendant procured the insurance by means of several false and untrue answers to questions propounded to him by the medical examiner; that such answers were and are warranties on his part. Wherefore the plaintiff society prays the certificate induced by and issued in reliance upon the truth of such statements be canceled and set aside for breach of the warranties contained in such untrue answers, etc. The evidence on the part of plaintiff tended to prove that on August 31, 1902, the insured defendant, H. C. Angle, executed his application to the plaintiff society for membership therein and $2,000 insurance, payable, in event of his prior death, to his wife, Amanda Angle, and his daughter, Myrtle Angle, $1,000 to each. On the showing made in the application, Mr. Angle was accepted as a proper subject of insurance, and on September 22d the certificate of insurance for $2,000 was issued to him, and he was duly adopted by the local camp as a member of the order. In order to obtain the issuance of the certificate mentioned, it was essential for the insured to undergo a medical examination by the camp physician of the order, and to give satisfactory answers to the following questions contained in the application. Such application, by its terms and the terms of the certificate, was made a part of the contract of insurance. The questions and answers referred to, as they appear in the application, are as follows:

"Q. 15. Are you now of sound body, mind, and health, and free from disease or injury; of good moral character and exemplary habits? A. Yes."

"Q. 23 (a) Have you, within the last seven years, been treated by or consulted any physician or physicians in regard to personal ailment? A. Yes. (b) If so, give dates, ailment, duration of attack and physician's or physicians' name and address? A. La grippe, three months, one week, Dr. Crewdson, mild attack. (c) Was recovery complete? A. Yes."

"Q.33. Have you ever had any disease of the following named organs, or any of the following named diseases or symptoms? Consumption? A. No. Spitting blood or other hemorrhages? A. No. Bronchitis? A. No. Habitual coughing? A. No. Lungs? A. No."

The insured resided with his family at Louisiana, Mo. He was, and had been for a number of years, foreman of bridge carpenters for the C. & A. Railway Company, and during the months of June, July, August, and September, 1902, was pursuing his occupation on the C. & A. Railway bridge over the Vermillion river near Pontiac, Ill. Between 30 and 60 days prior to applying for this certificate, he had a hemorrhage while at work on the bridge mentioned. The facts with respect to this matter are substantially as follows: Dr. Pearson of Pontiac, Ill., testified that the insured called on him with respect to the matter, and informed him he had had a hemorrhage from the lung on that day, that he had been having night sweats and a cough, and upon examination he found him then to have a hectic appearance, elevated temperature, dullness over both lungs, etc., and was suffering with pulmonary tuberculosis; that he advised him thereof, and to go to New Mexico. One McAllister gave evidence that about this time, just prior to his taking the insurance, he met the insured on the street in Louisiana, and, upon asking why he was at home, the insured stated that he...