Supreme Lodge Knights of Honor v. Wollschlager

• Decision Date: 03 February 1896
• Parties: SUPREME LODGE OF KNIGHTS OF HONOR v. WOLLSCHLAGER.
• Court: Colorado Supreme Court

44 P. 598

22 Colo. 213

SUPREME LODGE OF KNIGHTS OF HONOR v. WOLLSCHLAGER.

Supreme Court of Colorado

February 3, 1896

Appeal from district court, Arapahoe county.

Action by Marie Wollschlager against the Supreme Lodge of the Knights of Honor. From a judgment for plaintiff, defendant appeals. Affirmed.

Marie Wollschlager brings this action against the Supreme Lodge of the Knights of Honor on a benefit certificate for $2,000 issued by that order on the life of her husband, Louis Wollschlager, and payable to her as the beneficiary. In her complaint she sets forth in haec verba the certificate alleges the death of Louis Wollschlager, and that proofs of such death were made to the satisfaction of appellant. The appellant, for answer, admits the issuance of a benefit certificate to Louis Wollschlager, and that proof of his death was satisfactorily made, but alleges that he fraudulently procured the issuance of the certificate, in that he falsely stated in his application that he was 49 years of age, whereas he was over 50 years of age, and debarred by law from becoming a member of the order. These allegations were denied by the replication. The cause was tried to a jury, verdict rendered for the full amount of the claim and interest, motion for a new trial overruled, and judgment entered upon the verdict for the sum of $2,548,88 and costs. The appellant brings the case here for review.

Noah M Givan and F. J. Mott, for appellant.

S.E. Brown and George C. Preston, for appellee.

GODDARD J. (after stating the facts).

The objections presented by appellant that materially affect the merits of the case are based upon the giving and refusal of certain instructions, and the rejection of certain testimony while the appellee, by assigning cross error, questions the correctness of the ruling of the trial court in admitting over her objection, certain evidence introduced by appellant. Upon the trial of the cause, appellant objected to the introduction of the certificate of insurance in evidence because the complaint failed to set out the application upon which it was issued, and which, by reference, was made a part of it, and assigns error upon the overruling of this objection. Upon the question thus presented the adjudicated cases are not uniform. Appellant's claim is supported by some of the cases, among them, Gilmore v. Insurance Co., 55 Cal. 123, and Bobbitt v. Insurance Co., 66 N.C. 70; but we think the clear weight of authority, and the better reason, sustain the rule that in an action on an insurance policy it is not necessary to allege or prove the matters contained in the application, but to be availed of as a defense, whether regarded as warranties or representations, their falsity must be set up and proved by the insurer. Insurance Co. v. Wiler, 100 Ind. 92; Insurance Co. v. Rogers, 119 Ill, 474, 10 N.E. 242; Forse v. Supreme Lodge, 41 Mo.App. 106; Insurance Co. v. McGookey, 33 Ohio St. 555; Redman v. Insurance Co., 49 Wis. 431, 4 N.W. 591. Bacon, in his treatise on the Law of Benefit Societies (section 454), states the rule as follows: 'It is not necessary for the plaintiff, although the application, by the terms of the policy, is made a part of the contract, and the truth of the statements made therein warranted, to set out in his complaint or declaration the application, nor, in the first instance, to prove performance of any of its conditions, or the truth of the statements contained therein, because the agreement or warranties contained in such application are not conditions precedent, but qualifications of the liability of the insurer growing out of independent covenants, and in the nature of conditions subsequent, the breach of which are matters of defense for the insurer to allege and prove.' Under this rule, the court below properly admitted the certificate in evidence. A like question is also presented by the errors assigned upon the refusal to give certain instructions asked by defendant, and in giving those asked by plaintiff, as to the burden of proof, the court instructing the jury that the burden of proving the falsity of the statement alleged to have been made by Louis Wollschlager in regard to his age was upon the appellant. The rule as stated by the court was correct, and is fully sanctioned by the foregoing cases; also, by the case of Insurance Co. v. Brown, 57 Miss. 308, and the case of Insurance Co. v. Ewing, 92 U.S. 377. In the latter case it is said: 'While it may be easy enough to prove the affirmative of one of these questions, it is next to impossible to prove the negative. The number of the questions now asked of the assured in every application for a policy, and the variety of subjects, and length of time which they cover, are such that it may be safely said that no sane man would ever take a policy if proof to the satisfaction of a jury of the truth of every answer were made known to him to be an indispensable prerequisite to payment of the sum secured,--that proof to be made only after he was dead, and could render no assistance in furnishing it. On the other hand, it is no hardship that, if the insurer knows or believes any of these statements to be false, he shall furnish the evidence on which that knowledge or belief rests. He can thus single out the answer whose truth he proposes to contest, and, if he has any reasonable grounds to make such an issue, he can show the facts on which it is founded. The judge of the circuit court was therefore right in refusing to instruct the jury that the burden of proving the truth of these answers rested with the plaintiff below.'

The decisive question in controversy on the trial was whether Louis Wollschlager, the insured, misrepresented his age in the application for the insurance; and upon this issue the court permitted the appellant to introduce in evidence, over the objection of appellee, an application made by him for membership in the Grand Army of the Republic in January 1887, wherein he stated that he was 49 years of age, and an application for membership in the Krieger Verein of Denver, made March 23, 1886, in which he stated his age to be 48 years; also a declaration for invalid pension made by him March 4, 1879, wherein it was recited that he was 41 years of age; and a declaration for increase of invalid pension made October 31, 1882, wherein his age was stated to be 45 years. The appellee offered no rebutting testimony. If these statements were admissible, and competent proof of his age at the various dates upon which they were made, it is shown that he was more than 50 years of age...