98 Mo. App. 521 | Mo. Ct. App. | 1903
The defendant is a fraternal benefit society and Albert L. Callies became a member thereof' and took out a benefit certificate insuring his life in the sum of $2,000, of which sum $1,000 was to be paid to his mother and $500 to each of two sisters. Callies died about the 27th of May, 1901, at the Asylum in Nevada, Missouri. Each of the beneficiaries brought suit for the sums named payable to them. These suits were consolidated and tried as one. At the close of the trial the court gave a peremptory instruction for plaintiff.
The deceased at time of his application did not use intoxicating liquors and he stated in his application that he had never been intoxicated. He also stated that he had never had a hemorrhage. The certificate provided that he should not become intemperate by the use of. intoxicating drink and that if he did, it became void. There was evidence offered by defendant and excluded by the court that deceased had stated after the certificate had been issued, that he had been intoxicated and that he had had hemorrhages before its issuance. The' evidence tended to show’that deceased died of consumption while in a protracted state of intoxication. The evidence further tended to show that a short time before his death deceased was complained of before the' local lodge for violating the rules and laws of the order and the terms of his certificate by habitually using strong drink and frequently becoming intoxicated. That he was cited for trial of the charge and while it was shown to be true, no sentence of suspension or expulsion was passed. On the contrary, all action thereon was laid over and deferred until he should be released from the asylum.
Defendant seeks to avoid the effect of the deceased’s misrepresentation and his subsequent conduct by a plea of’ waiver. This consists in the trial aforesaid by the local lodge wherein defendant was charged with using intoxicants and becoming drunk just pre
But plaintiff further insists that if what we have just stated was not a waiver, that the subsequent furnishing blank proofs of loss to plaintiffs and the fact that they went to trouble and expense in making them, constituted a waiver, not only on the question of intoxication but also that of hemorrhage. We think not. There is nothing to show that defendant knew a,t the time the blank proofs were furnished that there had been a misrepresentation as to either of these things having occurred prior to the date of the application.
Deceased at time of application had two brothers alive and one dead. Defendant offered to prove this and that the dead brother died of diabetes. The court rejected this offer. The following questions,' in the following form, and answers thereto, are found in the application made by deceased:
From what was said by counsel at the trial we do not take it that a warranty is claimed; but it is insisted that a fraudulent concealment was made by deceased. A full and complete answer to the questions was required by the application. If the offer of proof turns out to be a matter of fact, it is evident that a fair and candid answer was not given. There was concealment and the parties (as they rightfully may) have made it material (Jeffries v. Ins. Co., 22 Wall. 47; Price v. Ins. Co., 17 Minnesota 497; Campbell v. Ins. Co., 98 Mass. 381, 403). If, therefore, it can be shown (under a proper answer) to have been a fraudulent concealment for the purpose of inducing the defendant to issue the certificate and which it would not have issued had the truth been told, it ought to avoid liability. In so stating we deem a fraudulent concealment of the matters here considered as tantamount to a fraudulent misrepresentation.
As the answer stood at the trial it bore more upon a question of warranty than a fraudulent misrepresentation or concealment and, therefore, the ruling of the court was right.
The judgment is reversed and cause remanded.