Wilson v. Brotherhood of American Yeomen

• Decision Date: 06 December 1921
• Docket Number: No. 16037.,16037.
• Citation: 237 S.W. 212
• Parties: WILSON v. BROTHERHOOD OF AMERICAN YEOMEN.
• Court: Missouri Court of Appeals

237 S.W. 212

WILSON v. BROTHERHOOD OF AMERICAN YEOMEN.

No. 16037.

St. Louis Court of Appeals. Missouri.

December 6, 1921.

Rehearing Denied February 2, 1922.

Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.

"Not to be officially published."

Action by Edgar J. Wilson against the Brotherhood of American Yeomen. Judgment for plaintiff, and defendant appeals. Judgment reversed, and the cause certified to the Supreme Court.

See, also, State ex rel. Brotherhood of American Yeomen v. Reynolds (Sup.) 229 S. W. 1057.

John D. Denison, of Des Moines, Iowa, and Lehmann & Lehmann, of St. Louis, for appellant.

Joseph Reilly and James M. Rollins, both of St. Louis, for respondent.

ALLEN, P. J.

This is an action upon a benefit certificate issued to the plaintiff by the defendant, a fraternal order, wherein plaintiff seeks to recover the sum of $500 alleged to be due him under said certificate as total disability indemnity. The trial below, before the court without a jury, resulted in a judgment for the plaintiff for the amount sued for, with interest amounting to $24.50, a total of $524.50. From this judgment the defendant prosecutes the appeal before us.

The petition alleges that the defendant—

"is and was, at all times hereinafter mentioned, a corporation duly licensed, under the laws of the state of Missouri, to conduct a mutual and fraternal insurance business in this state, and that the said defendant maintains lodges with a ritual and issues life insurance certificates on the assessment plan on the lives of the insured, payable at death of the insured, or payable in part on the total disability of the insured from injuries."

It is then alleged that on May 28, 1915, plaintiff became insured by defendant, and received from it the certificate sued upon, which provided for a death benefit of $1,000, and which further provided that one-half of the amount payable as death benefit would be paid in case of total and permanent disability rendering the member entirely unable to follow any vocation or pursuit, if demanded within 90 days from receipt of satisfactory proof of such disability.

The petition further alleges that plaintiff's dues and assessments due defendant were fully paid at the time of the injury, resulting in the total disability, thereinafter alleged, and that plaintiff was a member of the defendant order in good standing; that on December 24, 1915, plaintiff, while working on a locomotive in the city of St. Louis, was injured in a collision wherein he received a severe injury to his back, which resulted in a permanent loss of the free use of both legs, rendering him a cripple for life, and by reason whereof he is totally and permanently disabled.

Alleging demand upon defendant, and the latter's refusal to pay the amount of said indemnity, judgment is prayed for $500 and costs.

The answer contains, first, a general denial. It is then averred that the defendant "is a fraternal beneficiary association incorporated under the laws of the state of Iowa, and authorized to do business in the state of Missouri." It is admitted that defendant issued to plaintiff the certificate sued upon on the date alleged in the petition. The answer then sets up that the said certificate of membership contains the following provision, namely:

"That the statements in the application of said member, including his answers in the medical examination, copy of which appears on the back hereof and which is hereby made a part of this agreement, are true in every particular and shall be held to be strictly warranties and shall with the articles of incorporation and by-laws of this association form the only basis of the contract for the liability of the association under this certificate the same as if fully set forth herein."

It is alleged that certain questions set forth in the defendant's answer were asked plaintiff in his application for membership in the order, and that plaintiff made to such questions the specific answers set out, which are averred to have been false. The answer denies that plaintiff's alleged disability is due to the alleged collision, but avers that it is due to a disease, viz., syphilis, contracted before plaintiff became a member of the order. The answer further alleges that the certificate of membership contained the following provision, namely:

"Should said member die before having lived out his expectancy of life, based on his age at entry, according to the American experience tables of mortality, there shall be paid into the reserve fund of this association, out of the proceeds of this certificate, otherwise payable to the beneficiary, a sum equal to the amount of twelve assessments per year, at rate last paid by the member for the unexpired term of such life expectancy based on his age at entry and any accident or disability benefits to which he may become entitled shall be subjected to proportionate deductions for the reserve fund."

And it is alleged that plaintiff, when he entered the order, had an expectancy of life of 36 years, of which but seven months had elapsed at the time of his alleged injuries, and that in no event is there due plaintiff under the certificate more than $258.50.

The reply is a general denial.

At the trial the certificate of membership, of date May 4, 1915, was introduced in evidence, with plaintiff's application for the insurance attached thereto and made a part thereof. Plaintiff's testimony in chief is to the effect that he was engaged as a fireman on a passenger train of the St. Louis & San Francisco Railroad Company on December 24, 1915, when he was injured in a collision between that locomotive and another locomotive; that in said collision his back was injured, and he was taken to the "Frisco" hospital, where he remained hi bed about 15 days; that when he left the hospital he was crippled, having no control over his legs or use of them. And it is undisputed that he was affected with locomotor ataxia at the time of the trial.

It is unnecessary to set out the cross-examination of plaintiff or the other testimony in the case. It is sufficient to say that it appears from plaintiff's own admissions, wrung from him on cross-examination, together with other evidence in the case, that he had syphilis, and was treated therefor in 1907, and that he falsely stated in his application that he had not had such disease or such treatment. While there is testimony of medical experts, offered by plaintiff, to the effect that an injury of the character shown to have been received by plaintiff in the collision might cause locomotor ataxia, the other evidence in the case touching the matter tends strongly to show that plaintiff's condition was the result of syphilis; and the testimony of defendant's medical experts tends to show that such condition could only have resulted from said disease.

I. Defendant (appellant here) seeks a reversal of the judgment below upon the theory that the false answers made by plaintiff in his application for the insurance bar a recovery upon the certificate. It cannot be doubted, and does not appear to be disputed, that if the defendant is, and was at the time of the issuance of the certificate, a fraternal beneficiary association, authorized to do business in this state, and if the certificate is one which defendant could lawfully issue as such association, then defendant is exempt from the provisions of section 6142, Rev. Stat. 1919—the misrepresentation statute applicable to "old line" life insurance companies— and statements made in the application are warranties, the falsity whereof will prevent a recovery on the certificate. See Claver v. Woodmen of the World, 152 Mo. App. 155, loc. cit. 164, 133 S. W. 153; Floyd v. Modern Woodmen of America, 166 Mo. App. 166, 148 S. W. 178; Daffron v. Modern Woodmen of America, 190 Mo. App. 303, 176 S. W. 498; Hartmann v. Knights and Ladies of Security, 190 Mo. App. 92, loc. cit. 106, 175 S. W. 212.

In this connection it may be noted that the trial court, in a declaration of law given at the request of plaintiff, declared the law to be that—

"No misrepresentations in securing said certificate of insurance are material or sufficient to avoid said certificate of insurance, unless it shall be shown by the evidence that the matters misrepresented actually contributed to produce the said disabilities of the plaintiff."

This declaration was, of course, predicated upon section 6142, supra; but that section is not applicable to a domestic fraternal beneficiary association, nor to a foreign association of that character authorized to do business in this state, provided the character of business done is such as may be lawfully carried on by such association in this state. See McDermott v. Modern Woodmen of America, 97 Mo. App. 636, 71 S. W. 833; Whitmore v. Lodge, 100 Mo. 36, 13 S. W. 495, and authorities cited. It appears, however, from a memorandum opinion filed by the court, that the declaration was given upon the theory that defendant is not entitled to the privileges and exemptions allowed such associations under our law, for reasons here advanced by plaintiff, respondent in this court, and which are noticed below. And, if defendant is not exempt from the provisions of section 6142, supra, then doubtless it was a question of fact for the court below, sitting as a jury, whether the representation by plaintiff in obtaining the insurance was with respect to a matter which contributed to produce plaintiff's disability.

II. Plaintiff contends that defendant is not entitled to the privileges accorded fraternal beneficiary associations in this state, including the exemptions allowed them from the general insurance laws, for the reason, for one thing, that the record does not show that defendant was a fraternal beneficiary association licensed to do business in this state at the time of the issuance of this certificate. As shown above, the petition alleges that defendant is, and was at all the times...