Whitmore v. Supreme Lodge Knights & Ladies of Honor

• Citation: 100 Mo. 36,13 S.W. 495
• Court: Missouri Supreme Court
• Decision Date: 24 February 1890
• Parties: WHITMORE <I>et al.</I> v. SUPREME LODGE KNIGHTS & LADIES OF HONOR.

13 S.W. 495

100 Mo. 36

WHITMORE et al. v. SUPREME LODGE KNIGHTS & LADIES OF HONOR.

Supreme Court of Missouri.

February 24, 1890.

MUTUAL BENEFIT INSURANCE — EVIDENCE — ERRORS CURED.

1. Where neither the beneficiary of mutual benefit insurance certificates nor the trustee for the beneficiary and her husband (the beneficiary's parents) could insure the life of the assured for the beneficiary's benefit, under defendant's charter, if the trustee's husband induced the assured to insure her life for the benefit of the beneficiary, and paid therefor, the certificates were void; but if they were issued to the assured on her own application, and paid for with her money, and if she died a natural death, the beneficiary can recover, unless the insurance was fraudulently procured.

2. The court instructed that the certificates were fraudulently procured, and plaintiffs could not recover, if the assured, when she became a member of defendant, misrepresented her age, physical condition, or family history, and the facts misrepresented actually contributed to her death; and that "misrepresentation" meant any statement of fact not then known by the assured to be true. Held not objectionable, especially as substantially the same instructions were requested by plaintiffs, and as the benefits of Rev. St. Mo. 1879, §§ 5976, 5977, which declare that in certain instances misrepresentations shall not be a defense, do not apply to this class of insurance.

3. Evidence that insurance in other companies was effected on the life of the assured by or on behalf of the beneficiary is admissible to show that the object was to defraud defendant.

4. An error in the admission of evidence is cured where appellants fail to object thereto, and its consideration is afterwards excluded from the jury by the instructions.

Appeal from St. Louis circuit court.

The pleadings in this cause are in substance as follows: Plaintiffs, Benjamin T. and Marie E. Whitmore, are husband and wife, and defendant is a corporation. On the 22d of November, 1883, Mary A. Mudd was a member of Nonpareil Lodge, No. 592, of defendant, in St. Louis, and entitled to participate in the relief fund of said order to the amount of $1,000; said sum to be paid to plaintiff Marie E. Whitmore, as trustee of Marie L. Whitmore. Defendant issued its benefit certificate, under seal, to said Mary A. Mudd for $1,000, payable on death of said Mudd to said Marie E. Whitmore, as trustee as aforesaid. Mary A. Mudd complied with all the conditions of said certificate, paid all assessments, etc., and died on the 21st of July, 1884, a member of said order in good standing. The certificate is filed as "Exhibit A." Plaintiff asks judgment for $1,000. The petition has a second count, upon another certificate for $2,000, filed as "Exhibit B." The answer, after a general denial, alleges that the deceased, Mary A. Mudd, procured the insurance in question by false and fraudulent representations as to her health, and by false answers to the questions put to her by defendant as to the relationship of the beneficiary to her, as to the cause of death and age of her relatives. These answers are set forth in full, and alleged to have been as to material matters. The answer further sets up that Mary A. Mudd was of weak mind, and was induced by fraudulent representations and influence of plaintiffs, Benjamin L. and Marie E. Whitmore, to become a member of defendant; that Benjamin L. Whitmore, being a physician, caused himself to be made a medical examiner of defendant, and, as such, witnessed and subscribed the application of said Mary A. Mudd, and fraudulently recommended her to defendant as a good subject for insurance, and made false statements to defendant as to her health; and that he and his wife, by fraudulent acts and representations, induced the lodge of defendants to receive said Mary A. Mudd to membership, and procured further insurance on her life to the amount of $9,000 within eight months from the date of the certificate in suit. That Marie L. Whitmore, the cestui que trust, is the infant daughter of plaintiffs, and that the insurance in question and the other insurance was obtained by a fraudulent conspiracy of plaintiffs. That Mary A. Mudd lived with plaintiffs, and that her death was caused by their ill treatment and neglect of her, and that her initiation fee and assessments were advanced for her by plaintiffs. The answer also denies that Mary A. Mudd was of kin to either of plaintiffs or to their daughter, the beneficiary in question under the certificates in suit. The replication specifically denies the new matter set forth in the answer. It is admitted by the pleadings that the defendant was an incorporated co-operative benevolent insurance society.

The evidence is not preserved at length in the bill of exceptions, but only in short form, and, omitting the cross-examination of Williamson, (afterwards ruled out and instructed against by the court,) is the following: Plaintiffs introduced evidence tending to prove all the material allegations of the amended petition, and also introduced the constitution and by-laws of defendant. Defendant introduced testimony tending to show that the statements made by Mary A. Mudd, in her written application to defendant for insurance, as to her health, the relationship of the cestui que trust of plaintiffs to her, and the age and cause of death of her relatives, were, in some respects, untrue; also that said Mary A. Mudd was of weak mind, and under the influence of plaintiff Benjamin T. Whitmore; that said Whitmore was a member of the lodge of defendant to which said Mary A. Mudd belonged, and was a medical examiner of the same, and, as such, at the time of such insurance, and in order to effect the same, signed a physician's certificate as to the health of said Mary A. Mudd, which was, in some material respects, false. Defendant introduced evidence tending to show that the life of Mary A. Mudd was also so insured in four other benefit societies for the benefit of the children of said plaintiffs, Benjamin J. and Mary E. Whitmore, to the amount of $19,000; all of which testimony as to other and further insurance was then and there objected to by plaintiffs as incompetent and irrelevant, and the objection overruled; to which rulings the plaintiffs then and there excepted. Defendants introduced evidence tending to show that the health of said Mary A. Mudd was weak; that she was no relation to plaintiffs or to either of them, or to their children; that plaintiffs allowed said Mary A. Mudd to sleep and live in a cellar-room in their house after she was insured, and that she lived with them in a menial capacity, and that she had no money except what plaintiffs gave her; and that plaintiff Benjamin furnished her with the money with which the insurance in question was effected, and the monthly assessments with which it was kept up. And defendant also offered evidence tending to prove the several facts stated in the instructions afterwards given by the court in this cause. Plaintiffs introduced evidence tending to show that Mary A. Mudd, deceased, was of good health and fair intellectual abilities, and of good education; that she was not under any undue influence of plaintiffs, or either of them; that she was a first cousin of plaintiff Benjamin T. Whitmore; that the children of plaintiff, who are beneficiaries of the policy, were two girls of tender age; that deceased was devotedly attached to them; that she was treated always by plaintiffs as an honored member of their family, and not as a menial; that she loved them, and they her; that the most friendly relations existed between deceased and plaintiffs; that her room in their house was cheerful, wholesome, and comfortable, and not a cellar-room; that the deceased had money of her own, and that the money with which she kept up and paid the insurance in question was her own; and that no statements were made at any time to the defendant by the deceased, or by plaintiff Benjamin T. Whitmore, which they, or either of them, believed...