Yonda v. Royal Neighbors of Am.
| Citation | 148 N.W. 926,96 Neb. 730 |
| Decision Date | 26 September 1914 |
| Docket Number | No. 17796.,17796. |
| Parties | YONDA v. ROYAL NEIGHBORS OF AMERICA. |
| Court | Supreme Court of Nebraska |
An applicant for insurance, who in response to a question whether within the last seven years the assured “had consulted any person, physician or physicians in regard to personal ailment” answered “No,” did not make a false and untrue answer which will nullify the contract, even though it be shown that on one or two occasions she had consulted a physician for minor and temporary disorders.
Such an applicant answered “No” to a question as to whether she ever had any of a list of diseases, among which was named “la grippe.” The evidence shows that upon one occasion when a doctor had been called to attend her children he, upon the suggestion of another member of the family, gave her medicine for what he in his evidence named variously “influenza, la grippe, a common cold”; held, that this did not establish a defense based upon the alleged falsity of the answer.
The records and by-laws of a fraternal beneficiary association must be proved in the same manner as those of other private corporations.
Where the appellant complains of errors committed with respect to a defense based upon the existence of certain by-laws and there is no competent proof in the record of such by-laws, such alleged errors will not be considered, even though a printed pamphlet, said to contain such by-laws, had been admitted in evidence by the trial court.
Appeal from District Court, Lincoln County; Grimes, Judge.
Action by Thomas J. Yonda against the Royal Neighbors of America. Judgment for plaintiff, and defendant appeals. Affirmed.Wilcox & Halligan, of North Platte, E. A. Enright, of Kansas City, Kan., and U. A. Screechfield, of Rock Island, Ill., for appellant.
Hoagland & Hoagland, of North Platte, for appellee.
Annie Yonda on January 24, 1910, applied for insurance in the defendant, a fraternal beneficiary insurance association, naming the plaintiff, her husband, as beneficiary. A physical examination was made by defendant's medical examiner, the application approved, a certificate issued which was not delivered until April 6, 1910. She died on November 18, 1910. Defendant refused payment, alleging that the applicant made false answers to certain questions in the application, which she warranted to be literally true, and that the certificate was never in effect by reason of the facts that certain by-laws of the order provided that if not delivered while the applicant was in sound health, and, if a woman, not pregnant, liability should not attach, and that the applicant was not in sound health, and was pregnant at the time of delivery. The answers to the following questions are specifically alleged to be false:
[1][2] The record convinces us that Mrs. Yonda apparently, and so far as she knew, was of “sound body, mind and health and free from disease or injury” on January 24, 1910, at the time she was examined. There is no proof that she had ever consulted a physician within seven years for a personal ailment, except that, several years before, a doctor had prescribed for a swollen breast while she was nursing a child, and that in April, 1909, when a doctor had been called to the home for her children he, at the suggestion of another member of the family, gave Mrs. Yonda some medicine for a cold which had temporarily suppressed her menses. Her answers to the other questions were true, at least the defense has failed to show to the contrary, unless the slight ailment referred to, and which was variously termed by the doctor “influenza” “la grippe,” and “an ordinary cold,” for which he only gave medicine once, must be considered as a “disease.” We cannot consider that this is a reasonable construction to be given the language of the application. Such a slight indisposition is not in ordinary parlance so termed. The language used in these questions should be taken as understood by ordinary individuals who may apply for insurance and not in a highly technical sense. Moreover, a lapse of memory as to consulting a physician within seven years for such trifling ailments not material to the risk should not be held to vitiate the contract. To so hold would be unreasonable, unfair, and unjust. Modern Woodmen of America v. Wilson, 76 Neb. 344, 107 N. W. 568;Blumenthal v. Berkshire Life Ins. Co., 134 Mich. 216, 96 N. W. 17, 104 Am. St. Rep. 604. We are convinced that Mrs. Yonda was not pregnant at that time, and that her answer as to this condition was literally true.
[3] The second defense depends upon certain provisions which are alleged to be contained in the by-laws of defendant. We find it unnecessary to consider this defense, for the reason that there is no competent evidence in the record as to the existence of any such by-laws. The deposition of the Supreme Recorder of defendant was offered in evidence. After testifying that she was the custodian and keeper of the records of the order, and of its by-laws and had been such since the 5th of July, 1911, she was asked:
At the trial the plaintiff objected to the exhibit purporting to be the by-laws as--
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