Modern Woodmen of America v. Wilson
| Decision Date | 05 April 1906 |
| Docket Number | 14,225 |
| Citation | 107 N.W. 568,76 Neb. 344 |
| Parties | MODERN WOODMEN OF AMERICA v. LIZZIE WILSON |
| Court | Nebraska Supreme Court |
ERROR to the district court for Pierce county: GUY T. GRAVES JUDGE. Affirmed.
AFFIRMED.
Talbot & Allen and B. D. Smith, for plaintiff in error.
Barnhart & Free and W. W. Quivey, contra.
ALBERT C. DUFFIE and JACKSON, CC., concur.
This is an action on a beneficiary certificate issued to the plaintiff's husband by the defendant, a fraternal insurance association, in which the plaintiff is named as the beneficiary. The application upon which the certificate was issued was made by the assured on the 22d day of January, 1902, and is in writing on a blank furnished by the association. The blank application contained a large number of questions which the assured was required to answer, a blank space for his answer following each question. Among the questions and answers, shown by the application, are the following:
"(14) Have you within the last seven years been treated by or consulted any physician, or physicians, in regard to personal ailment?" "Yes." "If so, give dates, ailment, and physician's or physicians' name and address."
"(15) Are you now of sound body, mind, and health, and free from disease or injury, of good moral character and exemplary habits?" "Yes."
"(21) Have you been an inmate of any infirmary, sanitarium, retreat, asylum or hospital?" "No."
Then follows this statement:
The application is attached to the certificate and is expressly made a part of the contract evidenced thereby. The certificate contains these express provisions: The assured died on the 14th day of December, 1902, a little less than eleven months after the date of his application. Payment on the certificate was refused, hence this suit. The defense now relied upon is that the answers hereinbefore set out, of the assured to questions in the application made by him, were made by him in regard to matters within his knowledge and material to the risk, and that such answers are incomplete and untrue.
It conclusively appears from the evidence that the assured suffered from some bodily ailment from late in 1899 to midsummer of the following year. During that period he was treated, successively, by Dr. Alden, who is mentioned in the answer numbered 14, and four or five other physicians. About ten days of the latter part of this period the assured was treated at the home of one of the physicians in the city of Norfolk. Whatever may be the proper designation of the place in which he was treated at that time, in the evidence it is sometimes designated as a sanitarium, and again as the home of the doctor. He left the doctor's home or sanitarium the latter part of June, 1900, and according to the doctor's evidence he was cured of his ailment, and practically sound and well. From that time until the date of his application he was engaged in farming and other heavy work, and the evidence would sustain a finding that, to himself and others, he seemed to be in good health. There is considerable conflict in the evidence as to the nature and severity of the ailment for which the assured was treated during the period mentioned. Some of the physicians testified that it was pernicious anemia, which is classified as an incurable disease; others that it was merely jaundice, and readily yielded to treatment. It is inferable from the evidence that whatever may have been the technical name of the ailment, or its nature, it originated in an attack of la grippe. The evidence also leaves room for a difference of opinion as to the nature of the ailment of which the assured died; one line of testimony tending to show that it was pernicious anemia, another that he died of an ailment resulting from injuries received after his application had been accepted. The jury returned a verdict for the plaintiff, and from a judgment rendered thereon the defendant prosecutes error. The court submitted the case to the jury on the theory that incomplete or untrue answers to questions in the application would not defeat a recovery on the certificate unless such answers, or some of them, were intentionally incomplete or false and made with intent to deceive. Whether that theory is sound is the question now presented by the record.
The theory upon which the trial court submitted the cause is now vigorously assailed; the defendant contending that the honesty and good faith of the assured in making the answers in question are eliminated from the case because such answers are in regard to matters which were within the personal knowledge of the assured and untrue. In support of this contention the defendant invokes the rule announced in Royal Neighbors v. Wallace, 73 Neb. 409, 102 N.W. 1020, which is as follows:
"An untrue answer in an application for life insurance in regard to matters which are shown to be within the knowledge of the applicant and are...
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