Shotliff v. Modern Woodmen of America

• Decision Date: 17 March 1903
• Citation: 100 Mo. App. 138,73 S.W. 326
• Court: Missouri Court of Appeals
• Parties: SHOTLIFF v. MODERN WOODMEN OF AMERICA.<SMALL><SUP>*</SUP></SMALL>

73 S.W. 326

100 Mo. App. 138

SHOTLIFF v. MODERN WOODMEN OF AMERICA.^*

Court of Appeals at St. Louis, Missouri.

March 17, 1903.

BENEFICIARY ASSOCIATIONS—FOREIGN COMPANIES—ANSWERS IN APPLICATION—WAIVER—SUICIDE—EVIDENCE.

1. Foreign as well as domestic fraternal beneficiary associations are exempt from the general insurance laws; Rev. St. 1899, § 1408, defining such associations, and declaring they shall be exempt from such laws, and section 1410 providing that any foreign association coming within the description may do business in the state by complying with the provisions of the act and obtaining a license.

2. A finding in an action on a certificate of insurance in a beneficiary association that insured did not commit suicide held supported by the evidence, it not excluding every reasonable hypothesis of accident.

3. There is a waiver of objection to the answer of an applicant for insurance in a beneficiary association to the question as to insanity in his family, where, on his stating the facts, the examining physician, who wrote the answers, and who was an agent and officer of the association, advised him to answer "No," which answer was written in application.

4. The by-law of a beneficiary association that no officer may waive any of its laws which relate to the substance of the contract for the payment of benefits refers to a completed contract of insurance, and not to the preparing and acceptance of applications.

Appeal from Circuit Court, Newton County; Henry C. Pepper, Judge.

Action by Fannie B. Shotliff against the Modern Woodmen of America. Judgment for plaintiff. Defendant appeals. Affirmed.

McDavid, Johnson & Cravens, for appellant. White & Clay, for respondent.

BLAND, P. J.

The defendant is admitted to be a fraternal beneficiary association organized under the laws of Illinois. It is licensed to transact insurance business in this state. On December 26, 1900, defendant issued its certificate of insurance for the sum of $1,000 to David H. Shotliff; loss payable to his wife, the plaintiff. Shotliff died on April 12, 1901. The suit is to recover the amount secured by the benefit certificate. Plaintiff recovered judgment in the circuit court, from which defendant duly appealed.

Defendant admitted plaintiff was the wife of David Shotliff, that it issued the benefit certificate sued on, and that David Shotliff was in good standing with the order when he died, and admitted proofs of loss had been duly and timely made. Its defense was, first, that Shotliff died of his own hand, which avoided the insurance; second, that in his application for the policy, which was made a part of the contract, he made misrepresentations, which also avoided the policy, for the reason that he warranted the truth of these representations. The misstatement complained of was that he represented, stated, and warranted that there had been no insanity in his family, when, in truth and in fact, his sister Nellie had prior thereto been insane, and had been admitted to an insane asylum at Nevada, Mo., as an insane patient, and had been confined there for a period of six months.

It is conceded that, under the by-laws and contract of insurance, suicide avoids the contract; but it is contended by plaintiff that the defendant, being a foreign corporation, with a mere license to do business in this state, is not exempt from the provisions of section 7896, Rev. St. 1899, which declares that suicide of the insured, sane or insane, shall be no defense to suits on policies issued by corporations doing business in this state to citizens of this state, unless it be shown to the satisfaction of the trier or triers of the facts that the insured contemplated suicide at the time of making his application for the policy, and any stipulation in the policy to the contrary shall be void.

1. All the laws of this state in respect to fraternal beneficiary associations were incorporated in one act, passed in 1897 (Laws 1897, p. 132). These laws will be found in chapter 12, art. 11, Rev. St. 1899, beginning with section 1408 of the chapter. This section (1408) defines what is a fraternal beneficiary association, and declares that they shall be exempt from the provisions of the insurance laws of the state. The section does not mention domestic or foreign corporations, but includes all associations, whether foreign or domestic, which come within the definition of fraternal beneficiary associations. Section 1410 of the article provides that any foreign association coming within the description given in section 1408 may be permitted to do business in this state, by complying with the provisions of the act, on obtaining a license or certificate from the insurance commissioner authorizing it to do business in this state. There is nothing to be found in the act of 1897 to indicate that the Legislature intended that the law should apply to fraternal domestic societies, but not to foreign fraternal societies admitted to do business in this state. On the contrary, we think that the whole act shows the purpose of the Legislature was to put foreign associations authorized to do business in this state on the same footing as domestic ones. They are required to perform the same duties, in respect to making reports, etc.; and we have no doubt that both are governed and protected by the act, and that both are exempt from the general insurance laws of the state. McDermott v. Modern Woodmen (No. 8,653, decided at this term, not yet officially reported) 71 S. W. 833.

2. The issue as to whether or not Shotliff committed suicide was submitted to the jury by appropriate instructions. Their finding that he did not die by his own hand is challenged by the defendant on the ground that it was against all of the evidence. The evidence shows that Shotliff was in good health and of a cheerful disposition; that he was on good terms with all his neighbors, had no enemies, and that his domestic relations were happy; that he was not indebted to any one, and was reasonably prosperous in his business; that on the morning he was killed he arose from his bed at about 6 a. m., and, after lighting a fire, chatted pleasantly with his wife for a few moments, and then went out—as his wife supposed, to feed the horse. When breakfast was ready, his eldest daughter went out to call him in to breakfast. She found him lying in a path about 100 yards from the house, dead, with a gunshot wound in his right temple, and a 38-caliber revolving pistol lying at his side. The bullet entered a little above and in front of the right ear, penetrated the skull, and fractured the same at a point from two to three inches above and back of the left ear. One load had been discharged from the pistol found at his side. All the other cartridges in the pistol had been snapped, but did not explode. He had had the pistol but a few days. When he got it he said he wanted it to shoot a dog that had been bothering him and his family. The pistol was defective. On examination it was found that the hammer would not stand cocked, and had to be held back in place by the thumb in order to fire the pistol. The coroner and one or two other witnesses testified that Shotliff's face was slightly powder-burned. The physician who made the post mortem examination and other witnesses testified to the contrary. The presumption is that Shotliff did not commit suicide. To overcome this presumption, it was incumbent on the defense to show that every reasonable hypothesis of accidental death was excluded by the evidence. Boynton v. Ins. Co. (La.) 29 South. 490, 52 L. R. A. 687. The inference is very strong that the shot that killed Shotliff was discharged from the pistol found at his side, and discharged while in his hands; but that it was purposely discharged by him with suicidal intent, the evidence does not conclusively show, and we doubt if it preponderates in that direction. There is absolutely no evidence that Shotliff had any cause to commit suicide, or that any trouble was preying upon his mind that would drive him to so desperate an act. On the contrary, the evidence shows that his environment, his family, his happy disposition, his good health, his freedom from debt, and the friendship and respect of his neighbors, would inspire him with the hope of continued life. The pistol was out of order, tricky, and uncertain. Shotliff had had it but a few days, and had probably never attempted to use it before, and was unacquainted with the condition that it was in. He had evidently tried to fire several of its chambers, but failed, and the probabilities are that when it went off and killed him he was making an examination of it to see why it would not fire, and, in making this examination, carelessly handled it, and at an unpropitious moment it fired, as many an old, out of order firearm has done before. We do not think it can be said that the evidence excludes every reasonable hypothesis of accident.

3. The application for insurance is in two parts. The first was made out by Shotliff; the second, by the camp physician, and consists of questions that were propounded by the camp physician, the answers to which were written by him and under his supervision, as required by the by-laws of the association. To one of these questions, to wit, "Has your father, mother, or any brother or sister, etc., been afflicted with insanity?" The answer was, "No."

Following this part of the application, the insured stated:

"Applicant Will Please Note This Clause.

"I have verified each of the foregoing answers and statements from 1 to 35, both inclusive, adopt them as my own, whether written by me or not, and declare and warrant that they are full, complete, and literally true, and I agree that the exact literal truth of each shall be a condition precedent to any binding contract issued upon the faith of the foregoing answers. I further agree that the foregoing answers and statements, together with the preceding declarations, shall form the basis...