Thompson v. Royal Neighbors of America

• Decision Date: 30 December 1910
• Citation: 154 Mo. App. 109,133 S.W. 146
• Parties: THOMPSON v. ROYAL NEIGHBORS OF AMERICA.
• Court: Missouri Court of Appeals

133 S.W. 146

154 Mo. A. 109

THOMPSON v. ROYAL NEIGHBORS OF AMERICA.

St. Louis Court of Appeals. Missouri.

December 30, 1910.

1. APPEAL AND ERROR (§ 931) — PRESUMPTIONS.

In absence of declarations of law in the record on appeal, the appellate court must presume that the trial court applied correct principles of law to the facts.

2. INSURANCE (§ 817) — MISREPRESENTATIONS — EFFECT OF STATUTES.

In absence of proof that defendant in an action on a death certificate was a benevolent association as contemplated by statute, it could not defend for misrepresentations by insured as to facts which did not contribute to the death; since it must be presumed to be governed by Rev. St. 1909, § 6937, providing that no misrepresentation made in obtaining an insurance policy shall avoid it unless the matter misrepresented actually contributed to the event on which the policy became payable.

3. INSURANCE (§ 819) — ACTIONS — EVIDENCE — CHARACTER OF COMPANY.

A recital in the certificate that insurer was a benevolent association was not evidence of that fact.

4. INSURANCE (§ 687) — CHARACTER OF INSURER — MODE OF DETERMINATION — "BENEVOLENT ASSOCIATION."

Rev. St. 1909, § 7109, requires a benevolent association to be a corporation, society, or voluntary association, organized and conducted for the sole benefit of its members and their beneficiaries and not for profit, to have a lodge system with ritualistic form of work, and a representative form of government, making provision for payment of benefits for death to be derived from assessments collected from its members. Held, that the question whether an insurer was a benevolent association within the meaning of the statute was to be determined in part from the certificate of incorporation and in part from facts showing that its business was conducted in the manner prescribed by statute for benevolent associations, and if an association did not have a lodge system or ritualistic form of work and did not pay benefits entirely from assessments, it would not be a benevolent association within the statute.

5. APPEAL AND ERROR (§ 519) — BILL OF EXCEPTIONS.

Papers other than the petition, answer, reply, and demurrer, filed in the trial court, become a part of the record on appeal only when copied into the bill of exceptions, and a stipulation claimed to have been made below cannot be considered on appeal where it was not called for in the bill of exceptions.

6. INSURANCE (§ 688) — LIFE INSURANCE.

Whether a company is a life insurance company or a mutual benefit association doing business on the assessment plan, it is governed by the laws relating to life insurance companies, and not by those relating to benevolent associations.

7. INSURANCE (§ 787) — LIFE INSURANCE — CAUSE OF DEATH.

Where, though insured's confinement at childbirth was followed by puerperal septicæmia, she had begun to recover from that ailment, when pneumonia developed, causing her death, it cannot be said that her pregnancy and confinement contributed to her death.

8. INSURANCE (§ 809) — LIFE INSURANCE — ACTIONS — MISREPRESENTATIONS — DEFENSES — CONDITIONS PRECEDENT — DEPOSIT OF PREMIUMS.

Under Rev. St. 1909, § 6940, providing that no defense based upon misrepresentations in securing policies, shall be valid unless defendant at or before trial deposit in court for the benefit of plaintiff the premiums received on such policies, the amount of all the premiums received by the insurer must be deposited, and a deposit by check is not sufficient; the statute contemplating a deposit of lawful money in absence of waiver of legal tender.

9. INSURANCE (§ 817) — LIFE INSURANCE — ACTIONS — PROOF — DEPOSIT OF PREMIUMS.

An insurance company, defending an action on a life policy on the ground of misrepresentations in procuring the policy, must prove, as well as plead, that it has deposited in court in legal tender all of the premiums paid by insured, as required by Rev. St. 1909, § 6940.

10. INSURANCE (§ 819) — LIFE INSURANCE — ACTIONS — SUFFICIENCY OF EVIDENCE.

In an action on a life policy, evidence held to sustain a finding that insured was not pregnant when the application for the policy was made.

11. TRIAL (§ 382) — TRIAL BY COURT — PROVINCE OF COURT — WEIGHING EVIDENCE.

The trial judge, in a trial by the court, is no more bound than the jury to credit any particular testimony.

Appeal from Circuit Court, Lincoln County; Jas. D. Barnett, Judge.

Action by Charles H. Thompson against the Royal Neighbors of America. From a judgment for plaintiff, defendant appeals. Affirmed.

Creech & Penn and E. A. Enright, for appellant. O. H. Avery, R. H. Norton, and Dudley & Palmer, for respondent.

REYNOLDS, P. J.

Plaintiff, respondent here, filed his petition in the circuit court of Lincoln county, in which it set out that defendant is a life insurance company, incorporated under the laws of the state of Illinois and engaged in the business of life insurance in the state of Missouri, by virtue and authority of the laws thereof; that plaintiff was the husband of one Kate W. Thompson, hereinafter referred to as the insured, and remained such until her death; that she became a member of the order, and received a certificate by which defendant company contracted and agreed to pay to plaintiff, her husband, the sum of $1,000 on her death, she then being a member in good standing of the defendant association, and having paid all assessments and amounts of money levied against her as a member thereof; that on the death of the insured due notice and proof of her death was submitted to defendant, and demand of payment of the sum of $1,000 made, which being refused and never having been paid, judgment is asked for that amount, with interest and costs.

The answer denies each and every allegation and averment of the petition, save as expressly admitted, qualified or explained. It then "admits" that defendant is a corporation, duly organized and existing as a fraternal beneficiary society under the laws of the state of Illinois, and authorized to transact business as such fraternal beneficiary society in Missouri under the laws thereof relating to such societies. (Note that there was no such averment in the petition.) It then admits that on the application made by the member to a camp of the order located at Elsberry, Mo., "the same being a subordinate lodge of the defendant society," it issued its benefit certificate payable to plaintiff on the death of his wife. Further answering, it sets up the law of the state of Illinois under which it avers it was organized as a fraternal beneficiary society, and avers that it is such and is carried on for the sole benefit of its members and their beneficiaries and not for profit; that it has a lodge system with a ritualistic form of work and a representative form of government, and makes a provision for the payment of benefits in case of the death of its members, and that the fund with which losses are paid is derived from assessments and dues collected from its members. The answer further avers that the certificate was issued on the faith of the truthfulness of the answers of the insured to the questions in the application, and that her answers were warranties; that, among the questions asked her, the insured was asked if she was now pregnant; that in a note printed on the bottom of the same page of the application on which this question is printed it is set out that "if applicant is pregnant application will not be accepted by Supreme Physician. Examination will be postponed until at least two months after confinement"; that by answering "No" to this question, as to whether she was then pregnant, the insured had, by the provisions in her application and set out in the certificate, warranted this answer to be true. The answer avers that this answer "No" to this question was false and untrue, and that in truth and in fact the applicant was at that time pregnant, and her answer constituted a breach of warranty and a fraud upon defendant, and that by the false statement defendant was deceived and misled to its damage, and that but for the same the application would not have been considered, and no benefit certificate would have been issued to Mrs. Thompson; that the warranty of non-pregnancy was a continuing warranty, and that by the terms of the contract sued on, and by reason of the breach of the warranty above set out and the false and fraudulent representations as to nonpregnancy and the fraud thereon committed against defendant society, the benefit certificate sued on has been and is null and void and of no force, and at no time has it been a valid obligation against defendant society, and that all payments made to defendant society of every nature and sort by the assured are forfeited; that since the discovery of the breach of the warranty and perpetration of the fraud, it has been ready and willing to pay to the assured or her personal representative, all sums of money paid by her to the defendant society, and it avers that it now brings into court the sum of $9.40, the amount paid by Kate W. Thompson to defendant society, and tenders that sum to plaintiff, and, for the purpose of continuing the tender of said sum, it deposits with the clerk of the court a certified check for the same, to be delivered to plaintiff for the purposes herein set out; wherefore defendant prays judgment.

The reply denies each and every allegation of new matter contained in the answer; sets up that the medical examination was taken and made by a regularly authorized and appointed local agent and camp physician of defendant, he having full authority to make and pass upon the medical examination and to do all things necessary to be done in and about the taking and making of the examination and the writing out of the questions and answers therein contained; that he conducted the examination of the assured, wrote out all the questions and answers, including those pertaining to the pregnancy of the...