Reece v. Supreme Lodge, K. P.

• Decision Date: 04 March 1930
• Docket Number: No. 20928.,20928.
• Citation: 25 S.W.2d 1079
• Parties: REECE v. SUPREME LODGE, K. P.
• Court: Missouri Court of Appeals

25 S.W.2d 1079

REECE v. SUPREME LODGE, K. P.

No. 20928.

St. Louis Court of Appeals. Missouri.

March 4, 1930.

As Modified on Denial of Rehearing March 25, 1930.

Further Modification April 1, 1930.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

"Not to be officially published."

Action by Susie L. Reece against the Supreme Lodge, Knights of Pythias. Judgment for plaintiff, and defendant appeals.

Reversed.

S. H. Esarey, of Indianapolis, Ind., and N. H. Allen and Anderson, Gilbert & Wolfort, all of St. Louis, for appellant.

R. P. Williams and R. P. Elam, both of St. Louis, for respondent.

HAID, P. J.

This is an appeal from the judgment entered in favor of plaintiff for $5,000, plus interest of $504.16, or a total of $5,504.16.

The petition alleged that the defendant was a corporation organized under an act of Congress of the United States, and that it was doing an insurance business in this state; that the defendant issued its policy of insurance to John Reece, the husband of plaintiff, by which it agreed to pay to plaintiff, in the event of his death, the sum of $5,000; that the insured died on February 18, 1927, and that she made due proofs of his death.

The defendant filed an answer and cross-bill admitting its incorporation under an act of Congress; denied that it was doing an insurance business in the state of Missouri, and denied that it issued any policy of insurance to the husband of plaintiff. It admitted the death of John Reece on February 18, 1927, but denied that he complied with any terms and conditions of any policy of insurance, because defendant issued no policy of insurance to said John Reece. The answer further pleaded that at all times mentioned in the petition it was licensed by the superintendent of insurance of Missouri as a fraternal beneficiary association; that John Reece was on and prior to September 22, 1926, a member of Washington Lodge No. 133, and that as such, on September 22, 1926, he made application in writing for membership to plan D in the insurance department of defendant; that said plan D was a plan whereby members could apply for a benefit certificate which would provide for a payment to their beneficiary in the event of the death of said member on or before attaining the age of 65 years. The answer then alleges that the member in his application for a benefit certificate answered certain questions which he warranted in his application to be true, and that a certificate was issued to him in reliance upon and in consideration of the warranties, promises, and agreements, and set forth the falsity of certain of those representations, and immediately upon discovery thereof it tendered to the plaintiff the amount which the member had paid on said benefit certificate, and prayed that the certificate issued to him be declared null and void and for naught held.

To the answer and cross-bill the plaintiff filed a replication admitting that defendant was licensed by the superintendent of insurance as a fraternal beneficiary association, but denied that it was such; it admitted that the member was a member of Washington Lodge, and as a member of such lodge made application; that in pursuance thereof he appeared before the examining physician of the defendant, and, when asked the question whether he had consulted a physician or any kind of practitioner during the last five years, he advised such physician that he had consulted his family physician, and thereupon the medical examiner wrote down the answer to said question as "No," saying at the time that this was the proper answer to be made. The replication then alleged that the association was not a beneciary association under the laws of Missouri and was not entitled to any of the benefits, exemptions, or privileges given those associations, and that the provisions of article 15, c. 50, § 6401, Rev. St. 1919, exempting fraternal beneficiary associations from all the provisions of the insurance laws of the state, is unconstitutional and void in contravention of article 4, § 53, par. 33, of the Constitution of the state of Missouri; it denied that any false statement was made in answer to questions propounded by the medical examiner of defendant.

At the trial the plaintiff introduced in evidence the certificate of membership which recited that the member was accepted as a member of plan D in the fifth class of the insurance department in consideration of the warranties, promises, and agreements made in his application, and relying upon said warranties, promises, and agreements, and also offered in evidence the proofs of death which had been furnished to the defendant. The proofs of death were executed by Dr. R. A. Kinsella, and recited that the member died at St. Mary's Hospital on February 13, 1927, the immediate cause of death being carcinoma, that carcinoma — tumor of left kidney — was the disease with which deceased was afflicted during his last illness, and that said physician was first consulted on January 15, 1927.

The defendant then offered its testimony by calling Dr. G. W. Westbrook, who was named in the application of the member as the member's medical adviser, who testified that he and John Reece were pals, and that he had known Reece for 8 or 10 years intimately; that he had treated Mr. Reece at the doctor's office and at the residence of Mr. Reece four or five times along in April or May of the year previous to his death; that he had no records, because he made no charges against the deceased. The defendant then inquired as to what the witness had treated the deceased for, to which question the plaintiff objected on the ground that the physician was incompetent to testify to any information obtained in his professional capacity, which objection was sustained and exception saved. The witness further testified that the deceased would come by his office in the evening, take him to the house of the deceased, and bring him back the next morning, and that sometimes during the night he would treat him, but the court declined to permit the physician to testify for what the deceased was treated.

On cross-examination the witness was asked, "Q. He wasn't a very sick man, then, was he?" And the witness answered, "He was never confined to his bed a day, I think, during the whole time." On re-direct examination the defendant interrogated the witness as to the extent of the sickness of the deceased, urging that the question as to his sickness by the plaintiff waived any incompetency of the doctor to testify, and, in ruling upon the objection of the plaintiff, the court held that the doctor might answer the question as to whether deceased was a very sick man, but nothing further, and witness testified that the deceased was not a very sick man; that he was able to be up and to go down to his place of business every day. The defendant then made the following offers of proof which were objected to, the objections were sustained, and exceptions noted:

"Mr. Gilbert: We offer to prove by this witness that in April and May of 1926 he treated the deceased for bladder trouble and kidney trouble, and catheterized the deceased on three or four occasions; that the deceased had three or four hemorrhages from the bladder, and that the deceased would call for the witness at his office in the evening to come to his house, would keep him with him all night and return him to his office the next morning; that the deceased at that time was also suffering from neuritis; that one of the hemorrhages in particular was very heavy and was at least equivalent to a heavy menstrual flow, and that the deceased claimed an intense pain and insisted that the witness stay at his home with him on the nights that he stayed there, for the purpose of treating the pain and catheterizing him."

"Mr. Gilbert: Now I will make a definite offer of proof. We offer to prove that the deceased was suffering from neuritis; that he was suffering from trouble with the kidney and bladder which caused him to have hemorrhages and required catheterization, and we will offer it on the ground that the witness' statement to Mr. Williams' question was a conclusion, and in view of Mr. Williams' question I am entitled to go in and show specifically what the sickness was."

The defendant also offered in evidence the application for membership dated September 22, 1926, which contained the following questions and answers thereto:

"6D. Give the name and residence of your medical adviser (Or family physician to whom you now refer for certificate if deemed necessary). A. Westbrook."

"6F. Have you consulted a physician or any kind of practitioner, during the last five years? A. No."

"11. Have you ever had or been treated for any disease or disturbance of (a) brain or nerves? (b) throat or lungs? (c) heart or blood vessels? (d) stomach, liver, intestines, kidney or bladder? (e) genito urinary organs?" to each of which the answer recorded is "No." To question 12-C, "Have you ever raised or spit blood?" the answer is "No." To question 12-D, "Is your health impaired in anyway?" the answer is "No." To question 12-F, "Have you ever had any other illness or injury not mentioned above?" the answer is "No." Just preceding the signature of the applicant is the following: "I agree that the above and foregoing answers shall be a part of my application, which shall consist of parts I and II taken together. I also agree that said answers shall become a part of my certificate contract. I also warrant the truth of said answers and request that a certificate be issued to me based thereon."

Plaintiff then offered in rebuttal the reverse side of the application for insurance which disclosed the result of the physical examination of the applicant made by the physician of the defendant, followed by the testimony of the plaintiff. She testified that she was present when the examining physician asked applicant the questions shown in the application, and that, when applicant was asked whether h...