Woodmen of the World v. McHenry

• Decision Date: 16 November 1916
• Docket Number: 6 Div. 187
• Citation: 197 Ala. 541,73 So. 97
• Parties: WOODMEN OF THE WORLD v. McHENRY.
• Court: Alabama Supreme Court

73 So. 97

197 Ala. 541

WOODMEN OF THE WORLD v. McHENRY.

6 Div. 187

Supreme Court of Alabama

November 16, 1916

Appeal from Circuit Court, Jefferson County; E.C. Crow, Judge.

Action by Mrs. J.F. McHenry against Woodmen of the World. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

C.H Roquemore and E.T. Graham, both of Montgomery, for appellant.

Murray & Hanna, of Birmingham, for appellee.

McCLELLAN J.

The appellee prevailed in her action, which is rested on a policy of life insurance alleged to have validly issued, on May 23 1914, for one year, on her husband's life, by the appellant, a voluntary fraternal benefit society, the correct corporate name of which is shown to be Sovereign Camp of the Woodmen of the World. The insured, J.F. McHenry, died June 30, 1914; only 38 days after the date of the policy, and 45 days after he had signed the application for the insurance.

In addition to the general issue to the averments of the single count (numbered 5) submitted to the jury, the defendant interposed its defense through 13 pleas. Pleas numbered from 2 to 11, inclusive, assert, as a bar to a recovery on the policy, false representations or breaches of warranties by the insured, viz., that he had never had or suffered from disease of the kidneys; that he had never suffered from shortness of breath; that he had never had or suffered from hemorrhoids; that he had not, during the preceding five years, consulted or been attended by a physician for any disease or injury; that he had not theretofore failed to obtain life insurance from any life insurance company. Pleas 13 and 14 assert that the contract was unenforceable because the applicant was not in good health when the certificate of insurance was delivered to him. These defenses were predicated of provisions of the laws of the order and of statements of the application signed by the insured. The false representations or breaches of warranty relied on in bar of a recovery on the policy ("beneficiary certificate") were predicated, in some of the pleas upon these provisions contained in the "beneficiary certificate" sued on:

"This certificate is issued and accepted subject to all of the conditions on the back hereof and this certificate together with the articles of incorporation, constitution and laws of the Sovereign Camp of the Woodmen of the World and the application for membership and the medical examination shall constitute the contract between the order and the member."

"This certificate is issued in consideration of the representations, warranties and agreements made by the person named herein in his application to become a member," etc.

"If any of the statements or declarations in said application for membership and upon the faith of which this certificate was issued, shall be found in any respect untrue, this certificate shall be null and void and of no effect and all moneys which have been paid and all rights and benefits which shall have accrued on this certificate, shall be absolutely forfeited without notice or service"

and upon these provisions incorporated in the application of McHenry to join the order:

"I hereby certify, agree and warrant that all of the statements, representations and answers in this application, consisting of two pages as aforesaid, are full, complete and true, and whether written by my own hand or not, I agree that if any untrue statement or answer is made by me in this application, or to the examining physician, or any concealment of facts in this application, or to the examining physician, intentional or otherwise, then my beneficiary certificate shall become void and all right of any person or persons thereunder shall become forfeited"

and upon these questions and answers contained in the application:

"Have you now, or ever had any disease of the following named organs or any of the following named diseases or symptoms. That said McHenry answered said question 'No.' That in said application under the head of 'Personal History' the following questions were asked: 'Have you ever had any disease of the following named organs or any of the following named diseases or symptoms, Shortness of Breath,' to which the said McHenry answered, 'No.' He was also asked the question if he had ever had hemorrhoids and answered that question, 'No.' He was also asked the following question: 'Have you consulted or been attended by a physician for any disease or injury during the past five years,' which question he answered, 'No.' " The special replications (2, 3, and 5), addressed, separately, to all the pleas, to which appellant's demurrers were overruled, "averred, in substance," to quote the brief for appellee:

"That the insured was examined by an

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