77 Neb. 544 | Neb. | 1906
This was an action on a fraternal benefit certificate issued by the defendant to Katherine Merriman, deceased, payable at her death to her husband, plaintiff in this action. The death of Katherine Merriman, her initiation into the order, the issuance of the certificate, and the payment by the deceased of all dues and assessments in conformity with the by-laws of the order and the provisions of the policy are all admitted. The sole defense relied on is that the deceased made false representations in her application for the benefit certificate in the order, it being alleged that she falsely represented that she had not had paralysis prior to making her application for membership, and that she had falsely represented that she was not pregnant at the time of such application. Defendant’s testimony was all directed to the support of these two
For an intelligent review of the assignment of error in Ihe plaintiff’s brief, which, we think, is worthy of serious consideration, it is essential to review the. admitted as well as the disputed questions at issue in this case. The. defendant society, the Degree of Honor of the Ancient Order of United Workmen of Nebraska, is primarily a social organization for women bearing certain relationship to the members of the Ancient Order of United Workmen. Any woman bearing the required degree of relationship to a member of the parent order is eligible to social membership in defendant’s order, but there is also within the order a benefit department for the purpose of providing life insurance for those of the memebers who may be found to come within the requirements as to age and health. On the 11th day of September, 1902, 'Katherine Merriman made application for membership in the Mistletoe lodge, No. 104, of Lincoln, Nebraska, a subordinate lodge of the defendant order, and, on the 18th day of October she signed an application for membership in the benefit department and submitted to a physical examination by the examining physician of the department under the rules of the order. This application could not be acted upon until the applicant had been initiated into the order, and on November 27 following she presented herself and was initiated. After her initiation, her application and the report of the examining physician thereon and the certificate of membership were presented to the grand medical examiner of the order and approved, and forwarded to the Grand Recorder, and on the 17th day of December the benefit certificate sued on was issued and sent to the deceased. Retween the time of making application and the time of final issuance of the certificate there had been a lapse in payment of dues and assessments, which required, under the rules of the order,
In the application for membership there are two lists of questions or interrogatories, one list to be answered by the applicant, and the other to be answered by the examining physician from his personal examination of the applicant. Among the questions propounded to and answered by the applicant was the interrogatory, “Have yon ever had paralysis?” This question appears from the application to have been answered, “No.” Among the questions which the examining physician was required to answer, when the applicant was a married woman, is, “Is she now pregnant?”. The physician answered this question, “No.” Now, it is without dispute in the record that plaintiff’s wife died on the 10th day of April, 1903, from placenta prtevia, or hemorrhage in childbirth. There was evidence
As there is little or no competent testimony in the record pointing to paralysis as a contributing cause of Katherine Merriman’s death, it is highly probable that the jury returned a verdict for defendant on the theory that the applicant had fraudulently concealed her condition of pregnancy from defendant’s examining physician. While the examining physician testified that he made a careful physical examination of deceased, yet he said that he saw no outward signs of pregnancy and relied on deceased’s statement that she was not in that condition. He also testified that from his examination he believed her to be a first-class risk for insurance. Now, from the fact that a fully developed child was born to the deceased about six months after the examination, it is clearly established that she was about three months pregnant when the examination was made, so that the material question is whether or not she fraudulently and knowingly misrepresented her condition. The testimony of the medical experts in this case shows that before the quickening period pregnancy cannot be detected from general symptoms, and that the quickening period ordinarily occurs during the fourth or fifth month of pregnancy. Consequently, the evidence is very slight that tends to show that the deceased knew of her pregnancy on the 18th day of October, 1902, but it is much stronger on the probability of her having knowledge of such fact on the 1st
At the trial of the cause plaintiff asked for an instruction which, in substance, confined the applicant’s knowledge of the truth of her answers to the question to the time when the application was signed. The court refused to give this instruction, and told the jury in paragraph 3 of instruction on its own motion: “In considering the question whether any statement made by the deceased, Katherine Merriman, was true or false, you should consider it as of the time she signed the application, up to and including the time when the contract between her and the defendant company was completed, being the time of the final approval of the application by the company, to wit, December 17, 1902. This is true, for the reason that up to the time of the final approval of the application it Avould be her duty to correct any statement contained in her application made by her which she subsequently learned was false.” The learned trial court evidently gave this instruction on .the theory that the health certificate signed on the 1st day of December amounted to a reaffirmation of each of the answers to the questions contained in the original application. To our minds this Avould extend the scope of the certificate much beyond what might reasonably have been Avithin the mind of the party signing it. American Order of Protection v. Stanley, 5 Neb. (Unof.) 132, and Geare v. United States Life Ins. Co., 66 Minn. 91. This certificate should be construed so as to resolve all doubts and ambiguities -contained in it, if any there be, in favor of the insured or her beneficiary, and, so construed, it simply warrants that the applicant was in sound bodily health at the time she signed it. It will not do, in sound morals, for an insurance company to issue risks on the lives of married Avomen between the ages of 18 and 45 years, without anticipating the probability of the holders of such policies obeying the divine mandate to be fruitful and multiply and replenish the earth, and a condition, either in the by-laws,
We therefore recommend that the judgment of the district court be reversed and the cause he remanded for further proceedings.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.