Winn v. Modern Woodmen of America

• Decision Date: 25 May 1909
• Citation: 138 Mo. App. 701,119 S.W. 536
• Parties: WINN v. MODERN WOODMEN OF AMERICA.
• Court: Missouri Court of Appeals

119 S.W. 536

138 Mo. App. 701

WINN v. MODERN WOODMEN OF AMERICA.

St. Louis Court of Appeals. Missouri.

May 25, 1909.

1. INSURANCE (§ 819) — MUTUAL BENEFIT — ACTIONS — SUFFICIENCY OF EVIDENCE.

A fraternal benefit society should be held to strict proof of the defense that insured made false answers to questions asked in his physical examination.

2. INSURANCE (§ 819) — MUTUAL BENEFIT — ACTIONS — SUFFICIENCY OF EVIDENCE.

In an action on a benefit certificate, defended on the ground that insured had made false answers to questions in his physical examination, held, that there was substantial evidence for plaintiff on the issues.

3. INSURANCE (§ 817) — MUTUAL BENEFIT — ACTIONS — CONDITIONS PRECEDENT.

Where a fraternal benefit society refused to pay a death claim for more than a year, it will be presumed that its board of directors had passed upon it, conceding that their having done so was a prerequisite to an action by the beneficiary.

4. EVIDENCE (§ 472) — OPINION EVIDENCE — MATTERS DIRECTLY IN ISSUE.

In an action on a benefit certificate, plaintiff read, on cross-examination of a physician who had testified for defendant, the interrogatory and answer of insured in his application as to whether in seven years he had consulted a physician, and also the interrogatory as to the dates of ailments, consultations, and names and addresses of each physician consulted, and the answer of insured thereto that he had been sick a day or two the first of the month, and had then consulted witness physician. After reading such matters to the physician, plaintiff asked if the answers of insured were true, to which the physician was permitted to answer, over objection that it called for his conclusion, that the answers were true to the best of witness' knowledge. The witness had just testified to treating insured at times other than mentioned in the application. Held, that the further statement that, to the best of his knowledge, the answers of insured were true, was not evidence regarding the disputed fact, but an expression of opinion of witness upon the issue the jury were to determine, and was erroneously admitted.

5. WITNESSES (§ 280) — EXAMINATION — MISLEADING QUESTIONS.

In an action on a benefit certificate, a question propounded on the cross-examination of a physician who had testified for defendant, and who had made the physical examination of insured at the time of his application, whether the answers given by insured were true, was misleading, for witness might have understood it to mean whether the answer of insured that he had been once treated by witness was true, whereas the issue was whether the answer of insured was true, not only as to that, but as to whether he had consulted witness or any other physician at any other time.

6. WITNESSES (§ 344) — IMPEACHMENT — INTOXICATION.

Evidence that witness drank some, and also, that he got drunk every day or whenever he could get whisky, did not go to his general reputation, nor prove that he was intoxicated at the time of the events narrated by him, and falls within the rule against proving specific acts to impeach a witness.

7. WITNESSES (§ 340) — IMPEACHMENT — TIME.

Evidence of a witness' general reputation for sobriety was not incompetent because relating to the year before that in which his deposition was taken, particularly as he had moved away from the community.

8. WITNESSES (§ 340) — IMPEACHMENT — PARTICULAR TRAITS.

To impeach a witness, inquiry may be made, not only concerning his general moral character, but concerning particular traits.

9. WITNESSES (§ 357) — IMPEACHMENT — FORM OF QUESTION.

A question as to witness' general reputation for sobriety and otherwise should omit the words "and otherwise," and be confined either to witness' reputation for sobriety or other bad traits or general moral character.

Appeal from Circuit Court, Monroe County; David H. Eby, Judge.

Action by Clara D. Winn against the Modern Woodmen of America. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Plaintiff was the beneficiary in a certificate of fraternal insurance issued by defendant to James Thomas Winn June 30, 1906. The insured died August 26, 1906. The defenses were denial of the averments of the petition, a plea in bar of certain warranties in the application of the deceased for insurance which turned out to be untrue, and a further plea that insured committed suicide, and therefore defendant was not liable. The last defense was abandoned at the trial. In his application certain interrogatories were propounded to the deceased, which, with his answers to them, were in substance as follows:

"14. (a) Have you, within the last seven years, been treated by or consulted any person, physician or physicians in regard to personal ailment? Yes. (b) If so, give dates, ailments, duration of attacks, and name and address of each and all persons or physicians consulted or by whom treated. First of this month I was sick a day or two, and had Dr. Connell to see me, Sturgeon, Mo. (c) Was recovery complete? Yes.

"17. Are you now of sound body, mind, and health and free from disease or injury, of good moral character, and exemplary habits? Yes.

"33. (a) Have you ever had any diseases of the following named organs, or any of the following named diseases or symptoms? * * * Dyspepsia? No.

"33. (a) Have you ever had any diseases of the following named organs or any of the following named diseases? * * * Pleurisy? No."

The answer of defendant says all the foregoing answers of the deceased were false; i. e., were not full and complete and literally and exactly true, as the application, which was part of the contract of insurance, warranted they should be. Another defense interposed was that the deceased was not in good health at the time of the delivery of the benefit certificate, and by reason of said fact the certificate never took effect, but was null and void under one of defendant's bylaws, which provided the liability of the society for payment of benefits on the death of a member should not begin until, among other things, the benefit certificate had been delivered to the member "while in good health." The court refused to instruct the jury at defendant's request that plaintiff could not recover unless the jury found from the weight of the evidence the claim in suit under the benefit certificate "was passed upon by the board of directors of the defendant society before the commencement of this action." Said request was based on the following section of the by-laws: "Sec. 168. Death Claims. The board of directors shall pass upon all death claims upon deceased beneficial members made in accordance with the laws and rules of the society in such cases made and provided, and shall order payment thereof from the benefit fund whenever such claims are just and a proper charge against the society." Certain physicians gave testimony tending to prove they had treated the deceased for personal ailments, and he had consulted them within seven years next before June 25, 1906. These witnesses were Dr. J. W. Williams, Dr. J. T. Gaines, and Dr. W. S. Connell. Concerning this testimony, the court gave stringent instructions to the effect that if the jury found either of said doctors prior to June 25, 1906, the date of the application for insurance, and within seven years next before said date, had treated the insured for a personal ailment, or he had consulted said doctors or either of them regarding a personal ailment, the verdict should be for defendant; further, that, so far as the defense on the warranties was concerned, it was immaterial whether the personal ailment for which the doctors treated deceased, or about which he had consulted them, was serious, not serious, or only temporary. As regards treatment by Dr. Connell, the insured stated in his application said physician had treated him at Sturgeon, Mo., the first of the month in which he made the application. The court instructed regarding this matter that if the jury found said Dr. Connell had treated deceased for a personal ailment at any time within seven years of June 25, 1906, or the deceased had consulted said doctor within said time for any personal ailment, and such treatment or consultation was at a different time from the one mentioned in the application, the verdict should be for defendant. No instructions were given at the request of plaintiff, and none requested by defendant were refused, except a peremptory one for a verdict in its favor, and the one above copied ordering a verdict for defendant if plaintiff's application had not been passed on by defendant's board of directors before this action was instituted. A verdict was found for plaintiff for $3,000, the amount of the benefit certificate, and defendant appealed.

Tunnell & Hart, for appellant. J. H. Whitecotton, A. T. Stuart, and D. M. Proctor, for respondent.

GOODE, J. (after stating the facts as above).

The main contention for defendant is alleged disregard of the instructions and the evidence by the jury; it being asserted the verdict is contrary to both, and must have been the result of prejudice or passion. The evidence said to be uniform against plaintiff's recovery is that touching the truth of the answers to the fourteenth, seventeenth, and thirty-third...