76 Fla. 599 | Fla. | 1918
The defendant in error brought an action in the Circuit Court for Columbia County against the Sovereign Camp of the Woodmen of the World upon one of its beneficiary certificates which it had issued to C. L. McDonald, who Avas husband to Anna McDonald. The certificate was for two thousand dollars, but it contained a provision that the member of the fraternity upon whose life the certificate was issued was entitled to participate in the beneficiary fund to the amount of one thousand dollars should his death occur during the first year of his membership. This certificate was issued in October, 1914.
McDonald died, so the declaration alleges, on May 27, 1915. The certificate also provided for the payment of one hundred dollars for the erection of a monument to the memory of the insured in case of his death.
The beneficiary certificate was attached to the declaration and by appropriate words made a part of it.
The certificate contains a provision to the effect that it is issued and accepted subject to all the conditions on the back of it, and a statement to that effect was signed by C. L. McDonald. One of the conditions or agreements
The declaration alleged that the plaintiff within a “few days” after the death of C. L. McDonald did procure ana reduce to writing proof of his death and delivered the same to the sovereign clerk of the defendant, who received the same according to the conditions and stipulations of the certificate. That within a “few days” thereafter without “further objections to formalities of notice and proof of death” the defendant denied its liability.
The action was begun on the 20th day of September, or on the one hundred and sixteenth day after the death of McDonald.
A demurrer to the declaration was interposed on behalf of the defendant upon the ground that the declaration did not show that the condition quoted had been complied with, and that the declaration affirmatively showed that the plaintiff had violated the agreement by bringing the action within ninety days after the receipt of the proof of the death of McDonald by the sovereign clerk. The demurrer was overruled and such action is assigned as the first error.
Was the unqualified denial of liability by the defendant a waiver on its part of the agreement or condition that no legal proceedings for recovery under the certificate should be brought within ninety days after the receipt of proof of death by the sovereign clerk of the defendant ?
The clause quoted is for the benefit of the insurer and is intended to secure for him reasonable time in which
The agreement that proceedings shall not be broughi upon the certificate within a certain time after proof of death submitted is binding upon the beneficiary, but it affects the remedy only and may be waived by the insurer. Now an unqualified denial of liability waives preliminary proof of loss or death required by the policy. If proof of loss or death is waived, it is unnecessary to submit it. If it is unnecessary to submit it, it follows that so far as .the clause refers to proof of death, as a time from which the right to sue accrues, it has been waived by the insurer and made as if it did not exist. To hold otherwise would be to say that waiver of preliminary proof of death could not be made by the insurer. The defendant refused to pay at all and based its refusal upon some ground distinct from regularity of proof of death, or as the declaration alleges, without “further objections to formalities of notice and proof of death.”
If the beneficiary had verbally notified the clerk of the defendant of the death of the certificate holder and the defendant thereafter had by letter denied liability upon the certificate and expressly waived preliminary proof of death, it would be vain to say that preliminary proof must nevertheless be submitted in order that the defendant's liability on the policy might mature, because that
In McConnell v. Iowa Mut. Aid. Ass’n, 79 Iowa 757, 43 N. W. Rep. 188, Judge Beck, speaking for the court, said: “If repudiation of liability dispenses with proof of death, it cannot be said that the denial is such a repudiation of the contract as to authorize an action to be commenced prior to the time it is authorized by the terms of the policy.” We reach the conclusion, said he, “that plaintiff could not have commenced his action sooner than forty days after the death of the assured.”
In this case action was commenced more than ninety days after the death of the assured, and preliminary proof of death was waived. See Taylor v. Glens Falls Ins. Co., 44 Fla. 273, 32 South. Rep. 887.
If the waiver was not a repudiation of the entire contract and the defendant could yet claim its ninety days from the date of the death of the assured, as the Iowa court holds, it appears that this action was not prema
The second assignment of error rests upon an order of the court sustaining a demurrer interposed by the plaintiff to the second pleas of the defendant to the first and second counts of the declaration. These pleas in substance averred that C. L. McDonald in his application for the beneficiary certificate represented agreed and warranted that he was not then and had never been affected with the disease of tuberculosis, commonly called consumption, nor the disease of gonorrhea, and that for five years past he had consulted and been attended by only one physician; that such representations, agreements and warranties were false; that they were known to him at the time they were made to be false; that at the time of the application McDonald was then and had been for a long time affected with both diseases and had within the past five years consulted and been attended by more than one physician, and that McDonald had died on account of the said diseases, or one of them.
A copy of McDonald’s application for the beneficiary certificate was attached to the pleas, and by appropriate words made a part of them.
The second count of the declaration was based upon a claim for attorneys’ fees for the plaintiff, which the plaintiff claimed was provided for by the statutes of the State of Florida.
It appears to us that the pleadings in this case, so far at least as the defense presented by the above pleas is concerned, are involved in unnecessary entanglements. After the court sustained the demurrer to these pleas the defendant availed himself of the same defense by “amended and additional pleas" numbered three, four
Other pleas were also interposed by the defendant, among which were the following: The additional fifth plea to the first count averred that the applicant’s representation that he had consulted or been attended by but one physician within five years was untrue; the sixth plea to the first count averred that the applicant’s representation that he had never had consumption was untrue, but did not aver that he died from that disease; the seventh plea to the first count averred that the applicant’s representation that he had never had either the disease of consumption or gonorrhea was untrue and that he actually died from and on account of one or both of such diseases. The sixth plea to the second count was the same as the fifth plea to the first count; the seventh plea to the second count was the same as the sixth plea to the first count, and the eighth plea to the second count was the same as the seventh plea to the first count. Demurrers to these pleas interposed by the plaintiff on the 24th of April, 1916, were overruled by the court on August 14, 1916, as to the third and fourth pleas to the first
It appears, therefore, from these rulings that the defendant was permitted to interpose the defense that the applicant’s representation that he had never had the disease of consumption or gonorrhea was untrue and that he actually died from one of such diseases. But that he was denied the defense that the mere representation that he had never had either disease was untrue, as also the defense that his mere representation that he had not consulted or been attended by more than one physician within five years was untrue, but that he had consulted and been attended by more than one physician during that time for diseases from which he suffered at the time of his application other than constipation. The fifth plea to the first count and the^ixth plea to the second count, demurrers to which were sustained, averred that the applicant represented that he had consulted and been attended by only one physician within the past five years and that only for the disease of constipation, that such representation was untrue, that the truth was he had consulted and been attended by other physicians for diseases from which the applicant at the time of his application was suffering other than the disease of constipation, which fact if it had been known to the defendant it would have declined to issue the certificate.
Issue was joined by the plaintiff upon the third and fourth pleas to the first count and fourth and fifth pleas to the second count.
As the defendant got the benefit of the same defense by its third and fourth additional pleas to the first count and fourth and fifth pleas to the second count as it would have gotten had the second pleas to both counts been permitted to stand, it was not injured by the ruling upon the
Pleas numbered from eight to eleven, inclusive, to the first count, and from nine to thirteen, inclusive, to the second count are not good. The demurrer as to them was properly sustained.
The eighth plea to the first count denied that the application for the certificate was made by McDonald in accordance with the rules and by-laws of the defendant; the ninth plea denied that McDonald had complied with all the conditions of the contract of insurance; the tenth ple^ denied that his death entitled the plaintiff to the payment of the stipulated sum by the defendant, and the eleventh plea denied all the allegations of the declaration. The pleas numbered from nine to thirteen, inclusive, to the second count are of the same nature and bent. It is contended in behalf of the defendant that these pleas separately traverse certain material allegations of the declaration, but it is not pointed out what material allegations were thereby denied. Because a declaration con
There is left on this assignment of error, however, the question whether the subjects of the fifth, sixth and seventh pleas to the first count, and the sixth, seventh and eighth pleas to the second count constituted good defenses to the declaration. It is averred in those pleas that McDonald made a written application to the defendant for a beneficiary certificate and in such application “certified, agreed and warranted” that all the statements, representations and answers in the application were full, complete and true, and that in such application he agreed that any untrue statement or answer made by him in his application or to the examining physician, whose report was made a part of the application, and any concealment of fact, intentional or otherwise, should render the beneficiary certificate void and all of the rights of any person thereunder should on account
The demurrer to the seventh plea to the first count was sustained probably because it was considered to be uncertain or double, in that it did not specifically aver that McDonald died of one disease or the other, but that he died of one of the diseases named complicated by the other, or it was considered that the defendant had the full benefit of the plea in pleas three and four.
The application of McDonald for a beneficiary certificate, a copy of which is attached to the pleas and made a part of them, contains the following language: “I here
It is contended in behalf of the defendant in error that the matters of fact set up in the pleas were not by agreement between the applicant and the insurer made warranties. We do not agree with cousel upon this proposition. It was expressly agreed that the applicant was in sound health and that he suffered from no disease that would tend to shorten his life; that all his statements, representations and answers contained in his application consisting of two pages are true, and that any untrue statement or answer or concealment of fact, whether intentional or otherwise, should avoid the certificate. The application consisted of three parts, as follows: 1st. The
The statements of fact in the pleas viewed either in the light of representations or warranties constituted a good defense. For if regarded only as representations they were of a character most material and averred to have been untrue; but we regard them as warranties in view of the provisions of the certificate which declare the application for membership and medical examination of the member, etc., to constitute the contract or agreement between the society and the member. The statements are something more than representations merely tending to induce the insurer to assume the risk. By the terms of the certificate the application with other things constitute the agreement of insurance and by the application the insured warranted and agreed that his statements, representations and answers are “full, complete and true.”
The defendant in error relies upon the case of Mouler v. American Life Ins. Co., 111 U. S. 335, 4 Sup. Ct. Rep. 466,
The burden of proof is upon the defendant, it is true. It must prove the existence of the disease to establish the plea. In such an application it is not necessary for the applicant to answer many of the questions propounded. He does not promise to furnish information upon every point, he only agrees that whatever answer he gives, that answer shall be true; whatever representation he makes that representation shall be true. It is not necessary for him if he is ignorant of the presence of disease in his system to warrant that it is not present there. The rule is where warranties are clearly provided for they are so construed. Provident Saving Life Assurance Society of New York v. Llewellyn, 58 Fed. Rep. 940; Brady v. United Life Ins. Ass’n, 60 Fed. 727; Kelly v. Mutual Life Ins. Co. of New York, 75 Fed. Rep. 637; Rupert v. Supreme Court, U. O. F., 94 Minn. 293, 102 N. W. Rep. 715; Providence Life Assur. Soc. v. Reutlinger, 58 Ark. 528, 25 S. W. Rep. 835; Continental Ins. Co. v. Vanlue, 126 Ind. 410, 26 N. E. Rep. 119, 10 L. R. A. 845; Aloe v. Mutual Reserve Life Ass’n, 147 Mo. 561, 49 S. W. Rep. 553; Dwight v. Germania Life Ins. Co., 103 N. Y. 341, 8 N. E. Rep. 654; Boyle v. Northwestern Mut. Relief Ass’n, 95 Wis. 312, 70 N. W. Rep. 351; Johnson v. Maine & N. B. Ins. Co., 83 Me. 182, 22 Atl. Rep. 107; Baumgart v. Modern Woodmen of America, 85 Wis. 546, 55 N. W. Rep. 713; Knights of Maccabees of the World v. Shields, 156 Ky. 270, 160 S. W. Rep. 1043, 49 L. R. A. (N. S.) 853).
We think that the court was in error in sustaining the demurrer to the third, fourth and fifth pleas to the first count and the corresponding pleas to the second count,
The fourth assignment of error which involves' the question of the validity of the plaintiff’s replication to certain pleas of the defendant in which it undertook to interpose the defense that action was brought within ninety days after the submission of proofs of death must fail, as it has been shown that the pleas are bad in that they do not aver that the action was brought within nine-. days from the death of the insured. The fifth assignment of error is also without merit. The court held that a demurrer to a replication reached back to the plea, and held the. plea bad. It is contended that the statute, Sec. tion 1444, General Statutes, 1906, Florida Compiled Laws, 1914, has annulled the rule which has obtained in this State for so long, that a demurrer opens all previous pleadings and judgment will be given against the party who committed the- first error. See Sanford v. Cloud, 17 Fla. 532; Stokes v. Baars, 18 Fla. 656; Bennett v. Herring, 1 Fla. 387; State ex rel. Fowler v. Finley, 30 Fla. 302, 11 South. Rep. 500; Atlantic Coast Line R. Co. v. Beazley, 54 Fla. 311, 45 South. Rep. 761; Kirton v. Atlantic Coast Line R. Co., 57 Fla. 79, 49 South. Rep. 1024; Bellas v. Keyser, 17 Fla. 100; Murphy v. City of Jacksonville, 18 Fla. 318; Sylvester v. Lichtenstein, 61 Fla. 441; 55 South. Rep. 282.
Many of the above decisions were rendered long after the statute in question was first enacted, which was in 1861. It is not considered to have been the purpose of the Legislature by that act to abolish so salutary a rule of pleading, one which makes for a high standard of accuracy and precision in allegation and averment.
The remaining assignments of error involving the correctness of rulings in the admission and rejection of evi
The judgment is reversed.