Settle v. Royal Neighbors of America

• Decision Date: 27 June 1938
• Docket Number: No. 19194.,19194.
• Citation: 120 S.W.2d 67
• Court: Missouri Court of Appeals
• Parties: SETTLE et al. v. ROYAL NEIGHBORS OF AMERICA.

120 S.W.2d 67

SETTLE et al. v. ROYAL NEIGHBORS OF AMERICA.

No. 19194.

Kansas City Court of Appeals. Missouri.

June 27, 1938.

Rehearing Denied October 3, 1938.

Appeal from Circuit Court, Lafayette County; Charles Lyons, Judge.

"Not to be published in State Reports."

Action by Charles H. Settle and others against the Royal Neighbors of America on a certificate of life insurance. From an adverse judgment, the defendant appeals.

Reversed.

David A. Thompson, of Richmond, Blackwell & Sherman, of Lexington, and Gage, Hillix, Hodges & Coward, of Kansas City, for appellant.

Pross T. Cross, of Lathrop, R. H. Musser, of Plattsburg, Gerald Cross, of Lathrop, Crowley & Farris, of Richmond, and Ike Skelton, of Lexington, for respondents.

CAMPBELL, Commissioner.

The defendant, a fraternal benefit society organized under the law of Illinois and licensed in Missouri, executed to Minnie Settle, hereinafter called member, a certificate of life insurance at Holt, Missouri, on May 25, 1927, in which plaintiffs were named the beneficiaries. The member died on or about January 12, 1929.

This action was brought on the certificate January 17, 1930. Trial to a jury resulted in verdict and judgment for the plaintiffs for $1,410. The defendant has appealed.

The defendant contends the court erred in refusing its requested instruction in the nature of a demurrer to the evidence offered at the close of the evidence. In support of this contention defendant says the answers of the member in her application for the certificate were false; and that there was collusion between the member and the representatives of the defendant who wrote the answers in the application.

In the application the member stated in answers to questions that she had not within the last 7 years consulted or been treated by any physician or other person; that she had not undergone a surgical operation; that she had never been an inmate of a hospital or sanitarium, and that she had not suffered a miscarriage.

The application also stated the member had not been treated or informed by any physician that she had any one of many named diseases, among which was "abscess"; that each answer was "literally true" and that if any answer or statement in the application was not literally true the certificate would be void.

Plaintiff Beulah Harris, a daughter of the member, testified that Mrs. Galle, district deputy of defendant, came to see the member on April 2, 1927; at that time the member told the district deputy that she had a miscarriage, was operated upon in a hospital, went through the Mayo clinic and that she was "feeling pretty good"; that in reply Mrs. Galle said she thought the member "could get into the lodge".

The evidence for the plaintiffs further shows that Mrs. Galle and defendant's medical examiner obtained the member's application for the certificate on May 2, 1927; that during the preparation of the application the member disclosed to the defendant's said representatives that she had recently undergone a surgical operation, that she had a pelvic abscess and a miscarriage. In other words, the plaintiffs' evidence was to the effect that the member in fact answered the questions truthfully and that the answers as written were false. The answers were written by Mrs. Galle and the member signed the application without reading or being offered opportunity to read the answers.

When the certificate was delivered the member signed a statement therein as follows:

"I have read the above benefit certificate; hereby accept the same, and agree to all the conditions therein contained and warrant that I am now in sound health. I understand and agree that this certificate is not binding upon the Society until signed by me, nor unless I am now in sound mind, body and health."

A statement in the certificate said that a copy of the application was attached to the certificate—"Read it—if any answer or statement therein is not correct notify the supreme recorder at once."

The fact the member, under the circumstances shown, signed the application containing false answers written therein by defendant's representative, would not of itself void the certificate for the reason it was shown the member answered the questions correctly. Fries v. Royal Neighbors of America, Mo.App., 210 S.W. 130; Haney v. Security Ben. Ass'n of Topeka, Kan., 225 Mo.App. 872, 34 S.W.2d 1046, 1052; State ex rel. v. Bland et al., 316 Mo. 559, 291 S.W. 499; Fulbright v. Phoenix Ins. Co. of Hartford, Conn., 329 Mo. 207, 44 S.W.2d 115.

The defendant contends there was collusion between its representatives and the member which rendered the certificate void. This insistence is based on the evidence of one of plaintiffs' witnesses who testified as follows:

"Q. Did you ever have any conversation with Mrs. Settle about whether or not she was eligible to join the lodge on account of the state of her health? A. I did.

"Q. Will you state the substance of that conversation? A. It was one night out at the hall; in fact, we thought this examination was a joke, and Mrs. Settle told me that she told Mrs. Galle of the operation, and, of course, at that time she was in better health and Mrs. Galle thought it was all right, and Mrs. Galle said to Mrs. Settle,— I don't remember the exact words, `that the Camp shouldn't know everything and it was all right, what they didn't know wouldn't hurt them,' or something to that effect, and sent the application in."

The statement of Mrs. Galle referred to the "camp", not to the defendant, or at least the jury could so find. Hence we cannot say the statement shows collusion as a matter of law.

We have quoted above the statement in the certificate which the member signed at the time the certificate was delivered. Therein she said she had read the certificate, warranted she was in good health; that she understood the...