Whitney v. National Masonic Accident Ass'n.

• Decision Date: 12 June 1894
• Docket Number: No. 8796.,8796.
• Citation: 57 Minn. 472
• Parties: EDWIN C. WHITNEY <I>vs.</I> NATIONAL MASONIC ACCIDENT ASS'N.
• Court: Minnesota Supreme Court

57 Minn. 472

EDWIN C. WHITNEY vs. NATIONAL MASONIC ACCIDENT ASS'N.

No. 8796.

Supreme Court of Minnesota.

Submitted on briefs May 2, 1894.

Affirmed June 12, 1894.

Appeal by defendant the National Masonic Accident Association of Des Moines, Iowa, from an order of the District Court of Hennepin County, Henry G. Hicks, J., made September 22, 1893, denying its motion for a new trial.

The plaintiff, Edwin C. Whitney, was insured June 2, 1890, by defendant. He was fifty six years old and was treasurer of the Mississippi & Rum River Boom Company and engaged in official duties in its offices in Lumber Exchange Building, Minneapolis, and in travelling for it. By the policy it agreed to pay him $25 per week for a period not exceeding fifty two consecutive weeks in case he should be incapacitated for business by external, violent and accidental means. But the indemnity was not to exceed the sum realized by an assessment of two dollars upon each of the members at the date of the accident. Plaintiff's foot was frozen fifteen years before while out on snow shoes in the northern part of the state and his little toe and the one adjoining on his left foot were amputated together with about an inch of the bone back of the little toe. From this time there was on the outer or left side of that foot a lack of sensibility. It was less sensitive to heat and cold.

L. E. Crane, defendant's agent, came to plaintiff's office about June 1st, 1890, and asked him to take an accident policy. He read to plaintiff the application for membership and plaintiff answered all the questions he asked, made to him a full statement of the condition of his left foot, that there was numbness about it, and the cause of its condition and how it occurred. Crane said that it was of no consequence. He filled up the blank application and the plaintiff signed it. It contained this statement, "I have never had nor am I subject to fits, disorders of the brain or any bodily or mental infirmity except as herein stated." There was no statement in the application regarding his foot and plaintiff knew there was not.

This application was forwarded to the home office and the defendant made and forwarded to the plaintiff the certificate sued on. One of its terms provides, "This insurance does not cover dis-appearances nor injuries of which there is no visible mark upon the body; nor accident, or disability resulting wholly or in part, directly or indirectly, from any of the following causes, or while so engaged or affected: disease or bodily infirmities."

On January 28, 1891, plaintiff was riding north on the St. Paul and Duluth Railroad from Minneapolis to North Pacific Junction. He sat next the window of the car playing cards. The weather was cold and the steam heating pipes under the seat were hot. The outer or left side of his left foot came in contact with the steam pipes and was seriously burned before plaintiff was aware of the injury he was receiving. He was thereby incapacitated for business for seventeen weeks and four days. He made and served proofs of his injury and loss. The claim was disputed and he appointed an arbitrator and the defendant appointed another, but the two were unable to agree upon a third and the arbitration failed. Plaintiff then brought this action. At the first trial the court dismissed the action, but on appeal the judgment was reversed. Whitney v. National Masonic A. Ass'n, 52 Minn. 378. At the second trial plaintiff obtained a verdict for $485.53. Defendant moved to set it aside and for a new trial. Being denied it appeals.

Clark Varnum, and F. A. Gilman, for appellant.

COPYRIGHT MATERIAL OMITTED

A. B. Jackson, and J. B. Atwater, for respondent.

COLLINS, J.

The defendant is a mutual benefit association organized under the laws of the state of Iowa for the purpose of indemnifying its members by payments in money on account of accidents occurring to them, the necessary money being raised solely by assessments upon the members. This plaintiff became a member in June, 1890, and brought this action to recover the stipulated weekly indemnity for seventeen weeks and four days, because of an accident which befell him in January, 1891. The case has been here before. 52 Minn. 378, (54 N. W. 184.)

The association, at the second trial, resisted payment solely upon the ground of an alleged fraud committed by plaintiff when making application for membership. This application was made out and taken by one Crane, said to be defendant's agent, and contained the following statement or warranty: "10. I have never had * * * any bodily or mental infirmity;" and in the certificate of membership forwarded to plaintiff in due season after the association received the application was the following condition: "This insurance does not cover * * * nor accident, nor death or disability resulting wholly or in part, directly or indirectly, from any of the following causes, or while so engaged or effected: suicide, * * * disease or bodily infirmities."

It was claimed and conceded that, many years before making the application, plaintiff had so frozen one of his feet that two of his toes and part of the bone back of the little toe had been removed. The result was a numbness in that member, and through this numbness the accident on which plaintiff relied as a cause of action resulted. For the purposes of this discussion it must be taken for granted that the accident in question would not have occurred had there been no previous injury to the foot, and, further, that, within the terms and conditions of the application and certificate, the injury, with its result, amounted to a bodily infirmity. As has been made to appear hereinbefore, the fact that plaintiff had received such an injury was not stated in the application. This brings us to the principal points made by defendant association on appeal from an order denying its motion to vacate and set aside a verdict in plaintiff's favor, and for a new trial.

1. The rules which were laid down in this court in Kausal v. Minnesota Farmers M. F. Ins. Ass'n, 31 Minn. 17, (16 N. W. 430,) controlling in cases similar to this, need not be repeated here. Counsel for defendant association do not openly attack their correctness, but, with frequent allusions to the "fraud perpetrated by plaintiff when he signed an application in which he omitted to state that his foot had been frozen many years before, that a small part of it had been amputated, and that the balance was more or less numb," they attempt to distinguish this case on the facts from that. The charge of fraud, as found summed up at one place in the brief, omitting counsel's italics, is thus put: "In this case Mr. Whitney says he stated the facts to the agent; the agent notified him that he would not write them down,...