Tuepker v. Sovereign Camp, W. O. W.

Decision Date29 November 1920
Docket NumberNo. 13767.,13767.
PartiesTUEPKER v. SOVEREIGN CAMP, W. O. W.
CourtMissouri Court of Appeals

Action by Olga Tuepker against the Sovereign Camp of the Woodmen of the World. Judgment for plaintiff, and defendant brings error. Affirmed.

Harding, Deatherage, Murphy & Stinson, of Kansas City, for plaintiff in error.

Lyons & Ristine, of Lexington, for defendant in error.

TRIMBLE, J.

This is an action on a benefit certificate of a fraternal insurance company issued March 23, 1899, on the life of William Tuepker in favor of his daughter, Olga Tuepker, the plaintiff herein. Insured died November 6, 1918, while a member of said order in good standing with all his dues and assessments fully paid up. Plaintiff recovered judgment, and defendant has appealed.

The insurance contract provided that "If the member holding this certificate shall * * * become so far intemperate * * * as to impair his health, or to produce delirium tremens, or should die * * * from a disease resulting from his own * * * intemperate habits, * * * this certificate shall be null and void and of no effect, and all moneys which shall have been paid and all rights and benefits which may have accrued on account of this certificate shall be absolutely forfeited without notice or service."

Defendant's answer, after a general denial, set out this provision of the contract, and then alleged:

"That said William Tuepker became so far intemperate as to impair his health and to produce delirium tremens; that his death, which occurred on the 6th day of November, 1918, as alleged in plaintiff's petition, was caused by delirium tremens and resulted directly from the drinking of intoxicating liquors."

By virtue of which the answer alleged, the certificate sued on was null and void, and all moneys paid thereon and rights accruing thereunder were absolutely forfeited. Plaintiff replied with a general denial.

Plaintiff introduced the certificate, proved that insured had paid all dues and assessments, that he died while a member in good standing, and then rested after defendant had admitted that proofs of death were duly made.

Thereupon defendant introduced the proofs of death plaintiff had submitted. These consisted of the affidavits of various persons containing, among other things, the following matters:

The beneficiary's affidavit stated insured died November 6, 1918, "the cause of his death being convulsions; his friends say delirium tremens." — To the question whether deceased ever used alcoholic stimulants and to what extent, the answer was, "Became a drinking man four or five years ago." Her affidavit further stated:

"The deceased was taken sick with the trouble which caused his death on the 3d day of November, 1918, and the duration of his last illness was three days to November 6, 1918."

The attending physician's affidavit stated that he had not treated or advised the deceased prior to his last Illness. And the following questions were answered thus:

"(3) At last illness how long was deceased sick? Three days.

"(4) When did deceased show the first symptoms of his final illness? November 3, 1918.

"(5) For how long a time was deceased confined to his house or prevented from attending to his business? Three days.

"(6) When, how long, and for what did you treat deceased during his last illness? November 4, `18. Delirium tremens.

"(7) Date of your first visit or prescription? November 4, 1918.

"(8) Date of your last visit? November 6, 1918.

"(9) What was the cause of death? Delirium tremens. Duration, 3 days.

"(10) Was it complicated with any other disease, acute or chronic? No.

"(11) What was the remote cause of death? If from disease, give predisposing cause, date of first appearance of its symptoms, and history of same. Liquor.

"(12) Was there any special cause, direct or indirect, for his death in the habits, occupation, or residence of the deceased? Habit.

"(13) Did the deceased use alcoholic beverages? If so, to what extent did their use cause or contribute to his fatal illness? Yes; all.

"(14) Have you any knowledge or have you ever heard that deceased suffered from any other disease prior to his last illness? If so, state the time and nature of same. Enlargement of liver."

The affidavit of the "friend of deceased" stated: "The cause of his death was said to be — Don't know."

The affidavit of the "relation of deceased" stated: "The cause of death was convulsions or delirium tremens."

The condition of his health during the six months prior to his death was as follows: "Fair."

Defendant urges that its demurrer to the evidence should have been sustained, and that therefore the judgment must be reversed outright. Before this point can be satisfactorily passed upon in all of its bearings, several matters must be disposed of, the first of which is applicable to all branches of the point now being considered, and that is that it does not conclusively appear from the record that insured was addicted to the excessive use of intoxicants. The policy does not forbid insured from drinking. He may drink, but he must not do so to the extent that he impairs his health thereby, causes delirium tremens, or dies as a result of his intemperate habits.

Now, while the record does show that insured was "a drinking man," yet there is no conclusive showing that he drank to excess or so as to impair his health. The term "a drinking man" is a relative term, and is applicable to one who takes a drink when he chooses, even though it may be so infrequent as to produce no harmful effect upon his health. The witnesses say he was "a drinking man to a certain extent, but not so much." They describe him as "a moderate drinker"; "a drinking man in a way." No one ever saw him drunk in his life or under the influence of liquor. When he wanted a drink he would go into the saloon and get it and come out. He did not drink in secret or privately ; at least there is no evidence of it. He did not have the treating habit, but would go into the saloon alone, call for his drink, and drink it by himself. A witness who had known him for 30 years said sometimes he would take several drinks; sometimes he would not drink any. "He drank some; yes. I wouldn't say he was a steady drinker." Another witness, when asked if he was a drinking man, said: "Well, somewhat; yes." "He took his dram ever since I knew him, but I never saw him drunk." Another, when asked whether in the 24 or 25 years he had known insured he was a" drinking man, said:

"Well, he would go in and take a drink; go in the saloon and take a drink and go right on out." "Once in a while I would see him go in, once or twice a day, about all I would see him. I never saw him under the influence of liquor."

On cross-examination, when asked if insured took a drink on an average of once or twice a day, he said:

"Well, I couldn't say. He would go in — I would see him in there once in a while — and take a drink, the same as any other man that takes a drink." "Q. You say that you saw him go in once or twice a day? A. Sometimes; yes. * * * Well, I couldn't say that he would do that every day, but I have seen him go in once or twice a day once in a while."

A saloon keeper testified:

"Yes; he drank; * what would call a moderate drinker. I never seen him drunk." "He generally stood around by himself. He wasn't much of a fellow to mix with. * * * He would come in sometimes and stand around and wouldn't take a drink. 0 It seemed like he came and took a drink when he wanted it. Q. Well, did he want it two or three times a day? A. Well, I wouldn't say it was that much."

Another witness who had known him for 20 years, when asked if insured was a drinking man, said: "Well, he was a drinking man in a way; he took a drink occasionally when I saw him." He never saw him under the influence of liquor. The only evidence as to what he drank was in response to a question as to whether insured drank "hard liquor," given by one witness who said: "ale drank a little liquor. I have seen him drinking beer."

The foregoing is a résumé of the evidence as to his drinking habits, and it does not, of itself, show such excessive drinking as to impair his health.

But, if we understand defendant's position, it is this: In addition to the conceded fact that insured did drink as above indicated, defendant introduced evidence tending to show that in 1914 insured suffered for a year or more with cirrhosis or hardening of the liver, along with evidence tending to show that the larger part, though not all, of such cases are caused by the excessive use of alcohol ; that, owing to the admissions in plaintiff's proofs of death, the burden of proof was upon her to show that the insured's impairment of health was not caused by the use of intoxicants, and as she did not do this, but merely showed that other causes such as cardiac weakness, etc., can produce the dropsical condition insured had in 1914, without furnishing any evidence that such other cause or causes did produce it, she failed in carrying her burden. We may observe here that there was some evidence tending to show not only that the illness insured had in 1914 was not cirrhosis of the liver, since in that event the liver gets hard and smaller and remains so to the end whereas there was evidence that his liver was enlarged, but also that if the ascites or dropsical condition of insured was from cirrhosis of the liver caused by alcoholism, as asserted by defendant's medical witnesses, a man does not get well, whereas if the ascites was from cardiac weakness or other causes he may do so, and the evidence is that insured did recover, much to the surprise of the doctor who diagnosed his trouble as cirrhosis of the liver from alcoholism. But, aside from this, we do not agree that the burden of proof was upon plaintiff to prove that such impairment of health in 1914 was not...

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