Supreme Ruling of Fraternal Mystic Circle v. Hansen

• Decision Date: 15 January 1913
• Citation: 153 S.W. 351
• Parties: SUPREME RULING OF FRATERNAL MYSTIC CIRCLE v. HANSEN.
• Court: Texas Court of Appeals

153 S.W. 351

SUPREME RULING OF FRATERNAL MYSTIC CIRCLE v. HANSEN.

Court of Civil Appeals of Texas. San Antonio.

January 15, 1913.

Rehearing Denied February 5, 1913.

Appeal from District Court, Fayette County; Frank S. Roberts, Judge.

Action by Mrs. Ella Hansen against the Supreme Ruling of the Fraternal Mystic Circle. From judgment for plaintiff, defendant appeals. Reversed and rendered.

Meador & Davis, of Dallas, for appellant. John T. Duncan, of La Grange, for appellee.

TALIAFERRO, J.

This is an action by Ella Hansen to recover $2,000, with interest, from the Supreme Ruling of the Fraternal Mystic Circle, a fraternal beneficiary association, incorporated under the laws of Pennsylvania, and doing a fraternal life insurance business in Texas under a permit from this state. The amount demanded was claimed to be due upon a certificate of insurance held by Julius Hansen, deceased husband of said Ella Hansen. The appellant contested the claim upon the ground that the certificate was void or voidable because of false or fraudulent statements, answers, and warranties of the assured, upon material matters, in procuring said certificate of insurance. The case was submitted to the jury upon special issues; all of which were resolved by the jury in favor of the appellee. Upon this verdict, the court rendered judgment against appellant for $2,160, with interest at 6 per cent. per annum from date of judgment.

Conclusions of Fact.

Julius Hansen, the deceased, originally made application for membership and insurance with the defendant order on October 19, 1896, and at the same time made a full statement to the medical examiner as to previous health condition of family and self. He remained a member in good standing until December 31, 1908, at which time he was suspended for nonpayment of dues and assessments, and remained suspended until June 24, 1909. On May 31, 1909, he made application for reinstatement and health certificate, and filed petition for reinstatement. In his application for reinstatement, Hansen made the following statement: "I hereby warrant and declare that I am now [May 31, 1909] in sound health; that there is no cause in connection with my physical condition that would be a bar to my securing life insurance or in any way shorten my life; that I am not afflicted with any physical or mental defect or infirmity; that I have never suffered, nor am I now suffering, from tuberculosis, consumption spitting of blood, habitual cough, * * * diseases of the liver or kidneys or cancer. * * * I expressly agree that the original application for membership, under which said certificate was issued, shall be effective and binding, the same as if made to said Fraternal Mystic Circle at this date. Now, in consideration of the foregoing statements and warranties, * * * I hereby request that I may be reinstated, and I agree that * * * my reinstatement shall be valid and binding only in consideration that such statements and warranties herein and in said petition are full, complete, and true, and the only statements and warranties in consideration of which I am reinstated."

In his petition for reinstatement, which seems to have been signed at the same time he signed the application for reinstatement, he made this statement: "I * * * do hereby certify that I am, on the day and year above written [May 31, 1909], of * * * sound constitution, in good health, and free from all diseases and infirmities, and I hereby repeat all statements and warranties contained in my petition for membership, and warrant the same and statement herein or to the worthy medical examiner, and each of them, to be full, complete, and true. I further certify that there has been no change in my family history and that I have had no severe illness, local disease, or personal injury since the date of my original petition and examination for membership in this order."

In his original application for membership in the order, made in 1896, and which it will be seen was renewed and reaffirmed in his application and petition for reinstatement, he stated to the medical examiner that he had never been afflicted with bilious or renal disease or hepatic colic; that he had not had cancer, tumor, catarrh, chronic diarrhea, disease of the liver or stomach, dysentery, dyspepsia, ulcers or open sores, diseases of the genital or urinary organs, and that he had not undergone any surgical operations. As a matter of fact, Hansen had suffered from a spell of malarial fever in 1908, and was treated about April, 1909, for dysentery; he was operated on for hydrocele on November 24, 1908, and again about two months later, and at the last operation was informed by the physician that he probably had cancer of the right testicle. About April or May, 1909, he was troubled with vomiting, fever, and evidences of tumor in the gastric region. In July, 1909, he was examined by another physician, who found evidences of operations having been performed for hydrocele. This physician treated him for dyspepsia or gastric catarrh. In March, 1910, he had an operation performed, and his right testicle removed. In March or April,...