Pudritzky v. Supreme Lodge Knights of Honor

• Decision Date: 11 October 1889
• Citation: 76 Mich. 428,43 N.W. 373
• Court: Michigan Supreme Court
• Parties: PUDRITZKY v. SUPREME LODGE KNIGHTS OF HONOR.

43 N.W. 373

76 Mich. 428

PUDRITZKY v. SUPREME LODGE KNIGHTS OF HONOR.

Supreme Court of Michigan

October 11, 1889

Exceptions from circuit court, Wayne county.

Wm. Look and H. F. Chipman, ( E. F. Conely, of counsel,) for plaintiff.

Elliott G. Stevenson, for defendant.

LONG J.

Defendant is a corporation organized under the laws of Missouri. The action is brought to recover upon a certificate of membership issued by the defendant upon the application of the husband of the plaintiff in the sum of $2,000; the plaintiff being named as beneficiary. The defense in the court below was that this certificate was void by reason of the false statements made by the husband in his application for membership. The particular matters relied upon in the defense and which the court below held defeated the recovery of the plaintiff, were that in the application of Mr. Pudritzky he represented and stated, in answer to questions propounded- First, that he had never been afflicted with the disease of asthma or blood-spitting; second, that he had never made application for life insurance, and had never been rejected by the medical examiner of any lodge or society; and that these statements were untrue. Attached to this examination was the following certificate, signed by the applicant "I certify that the answers made by me to the questions propounded by the medical examiner of Cherusker Lodge No 1,267, which are attached to this application and form a part hereof, are true, in which there are no misrepresentations or suppression of known facts; and I acknowledge and agree that the above statement shall form the basis of the agreement with the Supreme Lodge Knights of Honor, and constitute a warranty." The certificate contains the following provision: "The Supreme Lodge Knights of Honor issues this certificate to Charles Pudritzky, a member of Cherusker Lodge No. 1,267," etc., "and upon condition that the statements made by said member in his petition for membership, and the statements made by him to the medical examiner, be made a part of this contract. The supreme lodge hereby agrees to pay out of the widows' and orphans' benefit fund to his wife, Dorothea Pudritzky, the sum of $2,000, in accordance with and under the laws governing this order, upon satisfactory evidence of the death of said member." It is insisted by defendant's counsel that these statements and misrepresentations were material and amounted to warranty.

The only controversy in the case is, did the answers made by Pudritzky annul the contract? The proofs made by the defendant upon these questions are from the application and examination, and the testimony of witnesses. From the application it appears that the following examination was made and answers given: "Sec. 13. Have you ever had any of the following diseases: Question. Disease of the lungs? Yes. Q. Spitting blood? No. Q. Any disease not mentioned? Pneumonia, 11 years ago. P. S. Has entirely recovered, and has not been sick since. Q. Asthma? No." Witness Julius Koch testified that he knew Pudritzky 12 or 14 years, and that 12 years ago he had a talk with him about his trouble with his lungs. " Question. What did he say to you, if anything, with reference to whether he had ever been troubled with spitting blood? Answer. I saw him. He looked bad; and I said 'Pudritzky, what's the matter?' and he said, 'I have a bad lung.' Q. And he told you he was sick,-his lungs were bad, and he was spitting blood? A. Yes, sir; he was spitting blood." Mr. Christian Hoesback also testified that in the year 1874 Pudritzky quit his work in a sash and blind factory on account of his health, and that Pudritzky then told him he was so badly off he had spit blood. Defendant also put in evidence the application of Charles Pudritzky for membership in the Knights of Pythias, as follows: "Application 376, of Charles Pudritzky, of section 22, endowment rank, K. P., is disapproved Sept. 12, 1884. A. R. Booth, medical examiner in chief. Present condition, asthma." In the application of Pudritzky in the present case, under section 17 he was asked the following question: " Q. Have you ever been rejected by the medical examiner of any lodge or society?" and answered, "No." To meet this testimony the plaintiff called as a witness Dr. J. H. Carstens, the examining physician of the Knights of Honor, and who was also the family physician of Pudritzky for many years. Dr. Carstens was shown the application and examination of Pudritzky, and examined as follows: " Q. Is this your signature? A. Yes, sir; looks like it. Q. Is that Pudritzky's signature? A. Yes, sir. Q. Who filled out these? A. I filled out all these things. Q. From whom did you get the information? A. From Mr. Pudritzky, except some I knew myself. I filled out myself, for instance, about his former sickness. I filled that out without asking him about it. All those questions I filled out myself." In answer to the question. "Did he answer these questions there?" the witness answered, "Yes, sir. I asked him all these questions, and put down the answers according to how he gave them to me, except some of them, where I knew all about it. I put them down myself without asking him any particular details." The witness also testified that he had treated Mr. Pudritzky and his family for 15 years, whenever he was sick, and knew him well, and saw him very often,-almost every day or two. Witness was then shown the question in the examination: "Have you ever been rejected by the medical examiner of any lodge or society?" and asked: "Did you answer that question 'No?"' and answered, "Yes, sir." " Q. Explain why it was answered 'No.' A. I asked Pudritzky, 'Have you ever been rejected by any other lodge or society?' He says, 'No, I have not; and I have he says, I intended to join the endowment rank of the Knights of Pythias, and I went to their doctor to be examined, and he looked at me, and he says: "Why, you have got the asthma; you...