Supreme Lodge Knights and Ladies of Honor v. Payne

• Decision Date: 01 April 1908
• Citation: 108 S.W. 1160
• Parties: SUPREME LODGE KNIGHTS AND LADIES OF HONOR v. PAYNE.
• Court: Texas Supreme Court

108 S.W. 1160

SUPREME LODGE KNIGHTS AND LADIES OF HONOR v. PAYNE.

Supreme Court of Texas.

April 1, 1908.

Certified Questions from Court of Civil Appeals of Fifth Supreme Judicial District.

Action by Charles J. Payne against the Supreme Lodge Knights and Ladies of Honor. Judgment for plaintiff, from which defendant appealed to the Court of Civil Appeals. On certified questions.

Locke & Locke, for appellant. Cockrell & Gray and H. C. Hughes, for appellee.

BROWN, J.

This is a certified question from the Court of Civil Appeals for the Fifth district. The statement and questions are as follows:

"Charles J. Payne brought this action to recover upon a policy of insurance or benefit certificate of $2,000 issued in his favor by the appellant, Supreme Lodge Knights and Ladies of Honor, on the life of his wife, Mary J. Payne. The appellant defended on the ground that certain warranties contained in the contract of insurance had been breached, by reason of which it had been discharged from all liability. To this defense appellee pleaded an estoppel, that the subject-matter thereof was not material to the risk, and did not contribute to the death of Mrs. Payne. Upon the conclusion of the evidence appellant requested the following instruction: `You are instructed that under the undisputed facts as shown by the competent evidence introduced in this case the plaintiff is not entitled to recover. You will therefore return a verdict in favor of the defendant.' This instruction was refused, and the case submitted to the jury upon special issues. Upon the findings of the jury judgment was rendered for appellee, and appellant has appealed the case to this court.

"The appellant is a mutual relief association organized and chartered under the laws of the state of Indiana. It has no capital stock, and the relief fund is created and sustained by assessments made upon its members in accordance with its by-laws. The affairs of the association are conducted by lodges, a quorum of whose members meet in their respective lodgerooms at stated times for the transaction of business. The benefit certificates issued to its members are issued in consideration of, and upon the faith of, written and printed applications therefor, to which is attached and made a part thereof what is known as the `Medical Examiner's Certificate.' Forming a part of this last-mentioned certificate is the `appellant's statement to the medical examiner,' which consists of printed questions and answers relating to the health, physical condition, etc., of the applicant. Dr. J. H. Erwin, the medical examiner of appellant, examined Mrs. Payne on May 5, 1905, and prepared the application upon which the policy or certificate sued on was issued. This certificate recites: `This relief fund certificate is issued upon the following express conditions: First, that the statements made by the member in the contract known as "Application for Membership" in relief fund and answers to questions in applicant's statement to the medical examiner known as "Medical Examiner's Certificate," upon the faith of which this relief fund certificate is issued, are true, and shall be treated as warranties.' Following the questions and answers thereto as contained in the applicant's statement to the medical examiner referred to in the foregoing recitation is a printed agreement signed by Mrs. Payne, reading thus: `I hereby declare and agree that the foregoing answers and the statements and the answers to the questions propounded to me by the medical examiner are warranted to be true. And I acknowledge and agree that my said answers and statements in this medical examination, together with my application for membership, shall form the basis of my agreement with the order, and constitute a warranty. I hereby make my medical examination a part of my application for membership, and agree that my said application and medical examination shall be considered a part of my relief fund certificate. I hereby declare * * * that the answers as written herein are as given by myself to the medical examiner. * * *' Among the questions and answers appearing above said agreement are the following: `Are you pregnant at this time? Answer: No. Are your menses regular? Answer: Yes. Do you know that in your application for relief fund membership you warrant the correctness and truth of your answers to all questions propounded to you by the medical examiner on this blank, and that if your answers to such questions are not true that your relief fund certificate, if issued, would be null and void? Answer: Yes.' At the time Mrs. Payne was examined for the policy in suit she was in fact pregnant, and on October 17, 1905, 5 months and 12 days after the examination, she gave birth to a living child, and on October 31, 1905, she died. The child was well developed, and not different from other newly born babies. It survived its mother 16 days, dying November 16, 1905. In answering that her menses were regular, and that she was not pregnant, Mrs. Payne acted in good faith, believing such answers to be true. She disclosed to appellant's medical examiner in making said answers fully all the facts known to her touching the irregularity of her menses, and whether or not she was then pregnant. She was, however, at the time of her examination, the mother of two children. Dr. Erwin, appellant's medical examiner, did not know at the time he examined Mrs. Payne that she was then pregnant; and appellant would not have accepted the application of Mrs. Payne for the certificate sued on if it had known that she was then pregnant. There was testimony tending to show that Mrs. Payne died from malarial fever, and the jury found that her menses were regular at the time of her medical examination, and that her statements that they were regular and that she was not pregnant were not material to the risk assumed by appellant in issuing the policy, and that her pregnancy did not contribute to her death. The specific question, whether Dr. Erwin dictated, advised, or suggested the answers of Mrs. Payne, that her menses were regular and that she was not pregnant, does not seem to have been asked, and was not submitted by the court to the jury for their determination.

"Dr. J. H. Erwin, appellant's medical examiner, who was authorized by appellant to ask the questions and write down the answers appearing in Mrs. Payne's application, after stating that he had conducted the examination of Mrs. Payne, etc., testified (giving the questions and answers just as...