Welch v. Fraternal Aid Union

• Decision Date: 11 June 1923
• Docket Number: No. 14739.,14739.
• Citation: 214 Mo. App. 443,253 S.W. 187
• Parties: WELCH et al. v. FRATERNAL AID UNION.
• Court: Missouri Court of Appeals

253 S.W. 187

214 Mo. App. 443

WELCH et al. v. FRATERNAL AID UNION.

No. 14739.

Kansas City Court of Appeals. Missouri.

June 11, 1923.

Rehearing Denied July 2, 1923.

Appeal from Circuit Court, Jackson County; Nelson B. Johnson, Judge.

Action by Ruth M. Welch and others against the Fraternal Aid Union. Judgment for plaintiffs, and defendant appeals. Affirmed on condition of remittitur.

Geo. R. Allen and W. Rea Heath, both of Kansas City, Kan., for appellant.

J. H. Newman and J. W. Broaddus, both of Kansas City, for respondents.

TRIMBLE, P. J.

This is an action to recover the sum of $2,000 of the defendant, a fraternal beneficiary association. Plaintiff's petition, in one count, alleges that—

Defendant "issued and delivered to their father, Jefferson W. Welch, * * * two certificates or policies of insurance which are hereto attached, herewith filed, and marked. `Exhibit A' and `Exhibit B,' by the terms of which is * * * promised and agreed therein to pay plaintiffs, on the death of said Jefferson W. Welch, the sum of $2,000."

No exhibits or certificates, however, were attached to or filed with the petition.

The defense was that insured in his application made false answers, which under the by-laws were warranties, for a breach of which the insurance would be forfeited; also that under the by-laws no liability arose on any certificate until the insured had been initiated, and this had not been done; also that assessments had to be paid on or before the 1st day of each month for which the same is levied, and failure to do so automatically suspended the member and his insurance was forfeited unless reinstated in proper form under the by-laws, and that insured failed to pay the assessment for June, 1918, and was suspended therefor and was never reinstated; also that insured became addicted to the use of intoxicating liquor to such an extent as to impair his health and contribute to his death, which fact under the by-laws forfeited the policy.

At the conclusion of plaintiffs evidence, the defendant demurred thereto, but was overruled. Thereupon it offered its evidence, and at the conclusion of the entire case prayed a peremptory instruction to find for defendant, which was also overruled. The jury returned a verdict for $2,315.66, being the $2,000 sued for with 6 per cent. interest. Judgment was rendered thereon, and defendant has appealed.

The questions to which false answers are alleged to have been made are as follows:

"(16) How much insurance is now on your life? A. $5,000.

"(17) In what companies or societies? A. Mystic Workers, $1,000; Yeomen, $2,000; M. W. A. $2,000.

"(8) Do you use intoxicating liquors of any kind? A. No."

For a number of years prior to his death Insured had worked for several fraternal insurance companies, and on July 1, 1916, he entered into the employ of defendant as an organizer and to solicit members on a salary and commission, which employment, according to plaintiff's evidence, continued down to the date of his death, which occurred on June 9, 1918. On February 12, 1918, he applied for $2,000 insurance and requested that $1,000 of it be made payable to his daughter Ruth M., $500 to his daughter Dorothy D., and $500 to his son Ernest W. In response to this application, the company wrote two policies of $1,000 each, in each of which it was provided that insured was, subject to the conditions and provisions of the certificate, "entitled in case of his death to have his beneficiary, Ruth M., Dorothy D., and Ernest W. Welch, bearing relationship to said member of daughters and son, to receive the amount of $1,000." The sum of "$500" was written over the name of Ruth M. Welch and "$250" appears in writing over each of the other two names. These policies were "registered and delivered in' Wyandotte Lodge No. 692 (Kansas City, Kan.), on April 1, 1918," as shown by the certificate of the president and secretary of insured's local lodge, indorsed on said policies. On April 23, 1918, Welch was stricken with his last illness, from which he continually grew worse and finally died on June 19, 1918, as heretofore stated.

If plaintiffs made out a prima facie case, then the burden of establishing the defense was upon defendant. Winn v. Modern Woodmen, 157 Mo. App. 1, 11, 137 S. W. 292; Gooden v. Modern Woodmen, 194 Mo. App. 666, 189 S. W. 394; Williams v. Modern Woodmen, 204 Mo. App. 135, 221 S. W. 414.

With reference to the defense that insured had falsely stated he did not use intoxicating liquors, the defendant introduced Its "examining physician" for Wyandotte Lodge No. 692, Dr. Helena E. Enz, who testified that she treated insured from February 18 to 26, 1918, for la grippe, from which he fully recovered; that she attended him in his last illness, the date of her first visit being April 23, 1918, and her last on June 19, 1918; that at her first visit he was sitting up, but was sick and was complaining of his heart; that she examined him thoroughly then and every few days afterwards; that at first she saw nothing wrong with him except the heart, and she treated him accordingly; that afterwards, perhaps a week or ten days, he became jaundiced, and was troubled with nausea and vomiting, indicating liver trouble; that she then inquired of him as to his habits in regard to the use of liquor; that he at first denied it, but later told her he "was a heavy drinker, had been drinking all of his life, an excessive drinker," and that he was an "habitual drunkard"; that from her first visit and throughout the time she called on him, she noticed pint whisky bottles, some of them empty, some of them full, on the floor of his room, and that was how she came to ask about his drinking habits; she said she knew he had been drinking because those bottles were there, though she never saw him drink and he was never in her presence under the influence of liquor; that while he was suffering from acute myocarditis, an inflammation of the muscular structure of the heart, and died of that disease, yet the liver condition caused a toxic condition which affected the heart and that caused his death. She further testified that his liver trouble was cirrhosis or hardening of the liver; that it could be caused by alcoholism and syphilis, and that a number of things could, and some infectious diseases would, cause it; that she did not know how many things could cause it; that prior to the development of the symptoms of liver trouble she did not know that he had cirrhosis of the liver; that she did not remember what she treated him with, as she kept no record, but that she gave him heart stimulants, for his heart was very weak; that she concluded, from what he told her as to his habits, that he had cirrhosis of the liver, after the swelling or dropsical condition together with nausea and jaundice appeared; the only way one could ascertain the cause of cirrhosis of the liver would be to hold an autopsy, remove the organ, and examine it, "except you get it from his history; he can tell you; he knows what he has been doing"; and "he (Welch) told me what it came from; he told me he was drinking and I knew that was where it came from." This witness further testified that a "division manager" of defendant called her to attend Welch during his last illness, and that she asked this man to guarantee her pay for her services and that he did so. She did not keep any record or chart of Welch's physical condition, and had no chart thereof nor record of what she gave him, nor could she remember what medicines she gave him.

This witness was, and had been for a long time, one of defendant's examining physicians, and she examined insured when he applied for the insurance. The report of this examination made out in her own handwriting on February 12, 1918, stated that she had personally known Welch for two years; that his appearance indicated sound health, with no indications of past or present use of intoxicants, no indications of heart disease, and she recommended him as a "safe and first-class insurance risk." She admitted this at the trial and said that at that time he was "just the picture of health" and showed no indications of alcoholic habits. Although in the report of her medical examination of him at the time of his application on February 12, 1918, she had stated she had known Welch for two years, yet in hen "attending physician's affidavit," made out at some time not shown by the record but, of course, after his death, she stated she had known him only since January, 1918, and at the trial said that was the first time she ever saw him.

The above-mentioned "attending physician's affidavit," as heretofore stated, was not introduced as a part of the proofs of loss, but was offered in evidence by defendant at a time different from that in which it offered plaintiffs' proofs of loss, and as a different exhibit altogether. In this affidavit Dr. Enz also stated that she treated deceased for acute myocarditis and that this was the final cause of death, with cirrhosis of the liver as the primary or Predisposing cause, the date or origin of which last, disease she did not know; that deceased used alcohol to excess, and this contributed "indirectly" to his death. Dr. Enz testified at the trial that she did not know who got her to make the above affidavit, but that it came to her through the mail and was sent to her by "some lawyer." The record does not disclose whether she was sworn to it or not, nor, if so, by whom it was done. The record of the proofs of death calls for "Blank No. 2, is attending physician's affidavit marked Exhibit 4, page 43 of bill of exceptions." But the record does not show any "Exhibit 4," while the "attending physician's affidavit" above referred to appears as a part of Exhibit 3.

The evidence shows that when insured's condition got desperate Dr. Enz called in another physician, Dr. Ray. He testified as a witness for defendant and says he saw insured only twice, once in his room and again at a...