Satterlee v. Modern Brotherhood of America, a Corporation
| Decision Date | 25 January 1906 |
| Citation | 106 N.W. 561,15 N.D. 92 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Ransom county; Allen, J.
Action by Walter A. Satterlee against the Modern Brotherhood of America. Judgment for plaintiff, and defendant appeals.
Reversed.
Judgment reversed, and judgment entered notwithstanding the verdict, and defendant recovered taxable costs and disbursements.
Spalding & Stambaugh, for appellant.
The provisions of the certificate and application meet all the requirements of our statute on the subject of warranties. Sections 4505, 4507, 4511, 4512, Rev. Codes 1899.
The burden of proving express warranties, whether affirmative or negative, in a policy of insurance rests upon the assured. Dreier v. Cont. Life Co., 24 F. 670; McLoon v Ins. Co., 100 Mass. 472, 97 Am. Dec. 116; Wood on Ins 867; Price v. Phoenix Mut. Life Ins. Co., 17 Minn 497, 10 Am. Rep. 166; Wilson v. Hampden Ins. Co., 4 R. I. 159; Herrorn v. Peoria M. Fire Ins. Co., 28 Ill. 238; Leete v. The Gresham Life Ins. Co., 7 Eng. Law and Eq. 578.
An express warranty is a statement of fact or promise of performance, relating to the subject of insurance or to the risk, inserted in the policy itself or by reference expressly made a part of it, which must be literally true or strictly complied with, or else the contract is avoided. Rev. Codes 1899, section 5713, par. 28; Richards on Insurance (2d Ed.) p. 62, par. 52; Johnson v. Dakota Fire & Marine Ins. Co., 1 N.D. 167, 45 N.W. 799.
F. S. Thomas and M. A. Hildreth, of counsel, for respondent.
Plaintiff was not entitled to a directed verdict, since his motion therefor did not point out specific defects in plaintiff's proof, and overruling it is not error. Kolka v. Jones, 6 N.D. 461, 71 N.W. 558; Hayne on New Trial and Appeal, section 116; Baker v. Joseph, 16 Cal. 173; Tanderup v. Hansen, 66 N.W. 1073.
The direction of a verdict for the plaintiff cannot be made the foundation of error, as it was not excepted to. DeLendrecie v. Peck, 1 N.D. 422, 48 N.W. 342; Dahl v. Stakke et al., 96 N. W, 353.
The appeal being from the judgment only, the only matter before the court is error of law occurring at the trial and excepted to. Weis v. Schoerner et al., 9 N.W. 794; Morris v. Niles, 30 N.W. 353; Barnard & Leas Mfg Co. v. Galloway et al., 58 N.W. 565; Latimer v. Morrain, 43 Wis. 107; Hawkins v. Hubbard, 51 N.W. 774.
Where false and untrue answers in an insurance application are alleged, the burden to prove such answers false is upon the defendant. Piedmont & A. Life Ins. Co. v. Ewing, 92 U.S. 377, 23 L.Ed. 610; Penn. Mut. Life Ins. Co. v. Mechanics Sav. Bank and Trust Co., 72 F. 413, 19 C. C. A. 286, 38 L. R. A. 33; Jones v. Brooklyn Life Ins. Co., 61 N.Y. 79; O'Connell v. Knights of Damon, 102 Ga. 143, 66 Am. St. Rep. 159; Chambers v. N.W. Mut. Life Ins. Co., 64 Minn. 495, 67 N.W. 367; Price v. Phoenix Mut. Life Ins. Co., supra.
The effect of statements, representations and warranties in an application for insurance is controlled by statute, to the extent that they are not material or do not defeat or avoid the policy unless made with intent to deceive, or unless the matter misrepresented increased the risk of loss. Rev. Codes 1899, section 4485; White v. Prov. Sav. Life Assn. Society of N.Y., 27 L. R. A. 398; Levie v. Metropolitan Life Ins. Co., 39 N.E. 792; Price v. Standard Life & Acc. Ins. Co., 95 N.W. 1118.
These are matters of defense to be shown by the defendant. Chambers v. N.W. Mut. Life Ins. Co., supra; Hale v. Life Indemnity & Inv. Co., 65 Minn. 548, 68 N.W. 182.
Appellate court will not adopt a theory different from that of the trial court. Noyes v. Bunt, 9 S.D. 603; Barrett v. Fisch, 76 Iowa 553, 41 N.W. 310; Louisville, N. A. & C. Ry Co. v. Wood, 113 Ind. 544, 14 N.E. 572, 16 N.E. 197.
Where a contract of insurance is open to construction, assured is entitled to the construction most in her favor. 17 Minn. 497; Supreme Lodge Knights v. Edwards, 41 N.E. 850; N.W. Mut. Life Ins. Co. v. Woods, 39 P. 189.
Courts do not favor a construction imposing a warranty. Phoenix Mut. Life Ins. Co. v. Raddin, 120 U.S. 183, 30 L.Ed. 644; Mouler v. Amer. Life Ins. Co., 111 U.S. 341, 28 L.Ed. 477; First Nat. Bank v. Hartford Fire Ins. Co., 95 U.S. 673, 24 L.Ed. 563; Grace v. American Cont'l Ins. Co., 109 U.S. 278, 27 L.Ed. 932; Fitch v. Amer. Popular Life Ins. Co., 59 N.Y. 557, 12 Cush. 416.
Applicant's statement of her not being pregnant, if there was nothing to indicate it to her mind, was but an expression of an opinion. Conover v. Phoenix Mut. Life Ins. Co., Fed. Cas. No. 3143; Goucher v. N.W. Traveling Men's Assn., 20 F. 598; Conn. Mut. Life Ins. Co. v. Union Trust, 112 U.S. 251, 28 L.Ed. 708; Aetna Ins. Co. v. Simpson, 69 N.W. 125.
Her answers were only "to the best of her knowledge and belief." Clapp v. Mass. Benefit Assn., 146 Mass. 519, 16 N.E. 433; Hann v. Nat. Union, 97 Mich. 413, 56 N.W. 834; Campbell v. N. Eng. Mut. Life Assn., 98 Mass. 381; Fidelity Mut. Life Assn. v. Jeffords, 53 L. R. A. 193.
This is an action on a benefit certificate or policy of insurance issued by the defendant, a fraternal beneficiary association, to Myrtle Satterlee, who, in her lifetime, was the wife of the plaintiff. The insurance was in the sum of $ 2,000, payable to this plaintiff upon the death of the insured. The contract of insurance consists of the beneficiary certificate or policy, together with the application of the insured for membership in the defendant order, and the articles of incorporation, fundamental laws, by-laws and regulations of the society. The application for insurance contains, among other things, the statements by the insured as to her physical condition made to the medical examiner of the defendant. This medical examination was had on March 12, 1904. The application was accepted, and the beneficiary certificate issued on March 19, 1904. Said Myrtle Satterlee died September, 12, 1904, after giving birth to a child on that day, which child was living at the time of the trial in May, 1905. The cause of her death was puerperal eclampsia, a disease caused by childbirth. The insured had been married about five years to the plaintiff, and they had always lived together as husband and wife ever since their marriage.
The contract of insurance, among other things, provides that if the application for membership should be found to be untrue in any respect, the certificate or policy should be thereby voided. The application, which is expressly made a part of the policy of insurance, and referred to in the certificate, is signed by the insured, and among other things recites: "I declare that I am, to the best of my knowledge and belief, in sound physical condition, and I further declare and warrant that the above statements, together with the answers made or to be made in the other parts of the application by me to the physician, are true, and shall form the basis of the contract for membership and certificate between me and my beneficiary and all parties who may at any time have an interest therein and said brotherhood, and any untrue or fraudulent answers or suppression of facts in regard to my health, personal habits or physical condition in this application * * * shall immediately make said benefit certificate null and void." Among other questions appearing in the medical examination, which was in a separate document attached to the application, the applicant was asked if she was then pregnant, to which she answered: "No." In connection with that question there was a clause stating that if the applicant was pregnant, a special waiver in that respect must be signed. At the end of the paper containing the questions and answers of the medical examination was the following: "I hereby further declare that I have read and understood all of the above questions put to me by the medical examiner, and answers thereto, and that the same are warranted by me to be true;" and the paper bears the signature of the insured.
The principal defense pleaded is that the defendant was not liable on the policy because the statement by the insured in her application, to the effect that she was not then pregnant, was untrue, and was a breach of a warranty contained in the contract. On a trial before a jury the facts already stated were shown, and the plaintiff testified that at the time the application was made, and until about two months afterwards, none of the usual indications of pregnancy had appeared; and that the child, which was born about twelve hours before the mother's death, was small and weak when born, but was still living at the time of the trial. No testimony, unless that just stated can be termed such was introduced to the effect that the child was in any way undeveloped or that it bore any indication of premature birth. The defendant called as a witness a practicing physician, who testified that a child born at the end of six months from conception could not live more than a few hours. This testimony was not disputed, although the physician who attended the mother at the time of her confinement was present at the trial and testified on other points in the case. At the close of all the testimony, both parties moved for directed verdicts. The defendant urged that it was entitled to a directed verdict, for the reason that the undisputed evidence showed that at the time the application for membership was made the applicant was pregnant, and the statements and representations made in the application and certificate were warranties that that condition did not then exist. The plaintiff moved for a directed verdict on the ground that the evidence showed without dispute that the plaintiff's wife did not...
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