76 Neb. 344 | Neb. | 1906
This is an action on a beneficiary certificate issued to the plaintiff’s husband by the defendant, a fraternal insurance association, in which the plaintiff is named as the beneficiary. The application upon which the certificate was issued was made by the assured on the 22d day of January, 1902, and is in writing on a blank furnished by
“(14) Have yon within the last seven years been treated by or consulted any physician, or physicians, in regard to personal ailment?” “Yes.” “If so, give dates, ailment, and physician’s or physicians’ name and address.” “1900, Dr. Allen. Grip.”
“(15) Are you now of sound body, mind, and health, and free from disease or injury, of good moral character and exemplary habits?” “Yes.”
“(21) Have you been an inmate of any infirmary, sanitarium, retreat, asylum or hospital?” “No.”
Then follows this statement: “I have verified each of the foregoing answers and statements from 1 to 28, both inclusive, adopt them as my own, whether written by me or not, and declare and warrant that they are full, complete, and literally true, and I agree that the exact literal truth of each shall be a condition precedent to any binding contract issued upon the faith of the foregoing answers. I further agree that the foregoing answers and statements, together with the preceding declaration, shall form the basis of the contract between me and Modern Woodmen of America, and are offered by me as a consideration for the contract applied for, and are hereby made a part of any benefit certificate that may be issued on this application, and shall be deemed and taken as a part of such certificate; that this application may be referred to in said benefit certificate as the basis thereof, and that they shall be construed together as one entire contract.”
The application is attached to the certificate and is expressly made a part of the contract evidenced thereby. The certificate contains these express provisions: “That the Modern Woodmen of America is a fraternal-beneficiary society, incorporated, organized and doing business under the laws of the state of Illinois, and legally
It conclusively appears from the evidence that the assured suffered from some bodily ailment from late in 1899 to midsummer of the following year. During that period he was treated, successively, by Dr. Alden, who is mentioned in the answer numbered 14, and four or five other physicians. About ten days of the latter part of this period the assured was treated at the home of one of the physicians in the city of Norfolk. Whatever may be the proper designation of the place in which he was treated at that time, in the evidence it is sometimes designated as a sanitarium, and again as the home of the doctor. He left the doctor’s home or sanitarium the latter part of June, 1900, and according to the doctor’s evidence he was cured of his ailment, and practically sound and well. From that
The theory upon which the trial court submitted the cause is now vigorously assailed; the defendant contending that the honesty and good faith of the assured in making the answers in question are eliminated from the case because such answers are in regard to matters which were within the personal knowledge of the assured and untrue. In support of this contention the defendant invokes the rule announced in Royal Neighbors v. Wallace, 73 Neb. 409, which, is as follows:
“An untrue answer in an application for life insurance in regard to matters which are shown to be within the knowledge of the applicant and are material to the risk will avoid the policy.”
Applying the foregoing rule to question numbered 14, and the answer thereto, which we repeat: “Have you within the last seven years been treated by or consulted any physician, or physicians, in regard to personal ailment?” “Yes.” “If so, give dates, ailment and physician’s or physicians’ name and address.” “1900. Dr. Alden. Grip.” — in the first place it is somewhat involved, consisting in fact of five questions. It is followed by a space for an answer which is barely sufficient to give the name and address of one physician, ailment and date. We have already shown that the assured was ill from the latter part of 1899 until near the middle of the following summer, and that the illness apparently began with an attack of la grippe. His illness during that period was practically continuous, and it is not surprising that he should consider la grippe as the ailment from which he suffered during the whole period. However, in another part of the application, when asked whether he ever had jaundice, the assured referring to the same illness answered, “Yes.” But the evi-. dence shows that the’assured, as well as some of his physicians, considered that during the whole period hé was suffering from some of the consequences of the attack of la grippe. Dr. Alden was one of the physicians who attended him during that period, and was also the medical examiner of the local lodge who took the application. In his report on the examination of the assured for membership he made a somewhat extended statement in regard to the assured’s answer that he had had jaundice. Taking into account the nature of the question, which might leave some doubt in the ordinary mind as to whether it called for the name of each physician who had attended the assured during the same spell of sickness, the limited space left for the answer, which is of itself a hint that the answer he brief, and that at the date of the application the assured was apparently in sound health, it is not an unreasonable inference that,
In the next question: “Are you now of sound body, mind and health, and free from disease and injury, of good moral character and exemplary habits?” — the space left for the answer is barely sufficient for the word, “Yes.” This clearly shows that the company required a categorical answer. The question itself shows that it called for the opinion of the applicant. The applicant at that time, so far as is disclosed by the evidence, may have been, or at least may reasonably have supposed himself to be, in good health and free from disease. The space left for his answer precludes the idea that it was intended that he should give a history of his past ailments. There is nothing in the
We come now to the last question: (21) “Have you been an inmate of an infirmary, sanitarium, retreat, asylum or hospital?” The space left for the answer to that question also indicates that the association required a categorical answer, and the answer is, “No.” We have seen that the assured in 1900 was treated at the home or sanitarium of a certain physician for a period of about ten days. We have also seen that this place is sometimes referred to as the home of such physician and sometimes as his sanitarium. This physician testified that he had treated the assured in Tune, 1900, in the city of Norfolk} and, when asked at what particular place in that city, answered, “At my sanitarium at my home.” When asked if he maintained a hospital or sanitarium in that city, he answered, “I did in the year 1901,” the year following'his treatment of the assured. Taking this evidence all together, we infer that at the time the assured was treated by this physician in Norfolk, the place where he was treated was not commonly known as a hospital or sanitarium, hut merely as the doctor’s private home where, in special cases, he received patients for treatment. And it is highly probable that the assured knew the place by the name by which it was commonly known and that he would have been surprised had he been told that by entering the doctor’s private home for treatment he became an inmate of “an infirmary, sanitarium, retreat, asylum or hospital.” The question immediately preceding the one under consideration, “Have you ever taken any treatment for tobacco, morphine, cocaine or opium habit?” — throws some light upon the construction which the assured placed upon the inquiry as to whether he had ever been an inmate of an infirmary, etc. It carries with it a suggestion of the popular conception of the institutions where such habits are commonly treated, which is entirely different from that of the private home of a physician where patients are occasionally received for
Complaint is made of the refusal of the court to give certain instructions tendered, by the defendant, but as such instructions, each and all, conflict with the theory upon which the court submitted the case, and which, in our judgment, was the proper theory upon which to submit it, they require no extended notice at this time.
It is recommended that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.