154 Mo. App. 109 | Mo. Ct. App. | 1910
Plaintiff, respondent here, filed his petition in the circuit court of Lincoln county, in which it is set out that defendant is a life insurance company, incorporated under the laws of the State of Illinois and engaged in the business of life insurance in the State of Missouri, by virtue and authority of the laws thereof; that plaintiff was the husband of one Kate W. Thompson, hereinafter referred to as the insured, and remained such until her death; that she became a member of the order and received a certificate by which defendant company contracted arid
The answer denies each and every allegation and averment of the petition, save as expressly admitted, qualified or explained. It then “admits” that defendant is a corporation, duly organized and existing as a fraternal beneficiary society under the laws of the State of Illinois and authorized to transact business as such fraternal, beneficiary society in Missouri under the laws thereof relating to such societies. (Note that there was no such averment in the petition.) It then admits that on the application made by the member to . a camp of the order located at Elsberry, Missouri, “the same being a subordinate'lodge of the defendant society,” it issued its benefit certificate payable to plaintiff on the death of his wife. Further answering it sets up the law of the State of Illinois under which it avers it was organized as" a fraternal beneficiary society and avers that it is such and is carried on for the sole benefit of its members and their beneficiaries and not for profit; that it has a lodge system with a ritualistic form of work and a representative form of government and makes a provision for the payment of benefits in case of the death of its members and that the fund with which losses are paid is derived from assessments and dues collected from its members. The answer further avers that the certificate was issued on the faith of the truthfulness of the answers of the insured to the questions in the application and
The reply denies each and every allegation of new matter contained in the answer; sets up that the medical examination w¡as taken and made by a regularly authorized and appointed local ag’ent and camp- physician of defendant, he having full authority to make and pass upon the medical examination and to do all things necessary to be done in and about the taking and making of the examination and the writing out of the questions and answers therein contained; that he conducted the examination of the assured, wrote out all the questions and ans.wers, including those pertaining to the pregnancy of the assured; that the assured disclosed to him everything that he asked her concerning her condition and gave him all the information that she had as to that condition, and that after she had so informed this physician or medical examiner as to her condition, and he asked her if she was then pregnant, but had written in the answer, “No,” to the question, as his conclusion based on her answers to other questions. It is further claimed that on the faith of the issue to her of the certificate, the insured had paid large sums of money by way of premiums, dues and assessments under the provisions of the policy; that after its issue and acceptance thereof as aforesaid by the insured, she became pregnant and gave birth to a child, “and yet the defendant, with full knowledge of said fact, continued to demand assessments, dues and premiums from the said Ivate W. Thompson, and said Kate W. Thompson did continue to pay the same up to the time of her death, as in the petition stated.” That after her death defendant furnished plaintiff with blanks for the proof of the death of his wife and required plaintiff to go to great expense, labor and loss
The case was tried by the court, a jury being waived, and evidence tending to support the allegations of the petition was introduced, the policy or certificate itself being introduced in evidence by plaintiff and also due proofs of death of the insured, and some correspondence between plaintiff and officers of the defendant. The receipts for payments of assessments made after the confinement of the insured were also in evidence.
At the conclusion of plaintiff’s evidence, defendant interposed a demurrer to the evidence which was overruled, defendant excepting.' Thereupon defendant introduced evidence-tending to show that the insured was pregnant at the time the application stated to the contrary and tending to show that the examining surgeon had written in the answer, “No,” by direction of the insured. The by-laws of defendant were introduced in evidence but only such of them as appellant deems material are in the abstract. At the conclusion of the testimony, defendant again demurred to the evidence, which demurrer was overruled, defendant excepting. No declarations of law other than this demurrer were asked by either party and none were given. The trial court found for plaintiff and entered up judgment for the amount of the policy and interest. Defendant in due time filed its motion for a new trial and that being' overruled duly excepted, duly filinglts bill of exceptions and perfecting its appeal to this court.
“No.--. Dubuque,, Iowa, Sept. 19,1907.
The First National Bank.
Pay to Charles H. Thompson for the use and benefit of the personal representative of Kate W. Thompson, deceased, or order $9.40, nine and 40'-100 dollars.
In Current Funds.
Jobln D. Denison, Jr..”
Endorsements: “Certified, Sept. 19’, 1907, First National Bank, Dubuque, Iowa. B. F. Blocklinger, Cashier.”
Another defect in the defense of the appellant rests in its failure to comply with the requirements of section 6940, Revised Statutes 1909', which provides that no defense based upon misrepresentation in obtain or securing policies, “shall be valid, unless the defendant shall, at or before the trial, deposit in court for the benefit of the plaintiffs the premiums received
Over and above that, however, the statute does not contemplate the deposit with the clerk of a check, whether certified or not. When the statute refers to a deposit with the clerk of the amount of premiums or assessments received, it refers to a deposit of lawful money, legal tender, and the deposit of a check, certified or otherwise, is not a deposit which the respondent was bound to accept. Of course, if the respondent chose to waive the legal tender and accept the check that would be his own concern, but in the absence of such an act on his part, and there is no pretense of any such action, the deposit of the certified check with’ the clerk is no compliance with the statute. The answer itself contains no averment of a legal tender; it avers deposit with the clerk of a check. Deposit of the premiums or assessments received, is a necessary prerequisite to recovery. [Lavin v. Empire Life Ins.
Independent, however, of the question at to whether defendant was subject to the laws relating to life insurance companies and recurring to what we briefly stated at the outset, the trial was before the court, a jury having been waived. The question as to whether at the time of making the application the insured was pregnant, was one of the facts inquired into. While the testimony of the physician produced by defendant and who had attended the insured at her confinement, was positive that pregnancy must have existed at the time of making the application for the insurance, after all, his testimony was founded on a matter of opinion. The testimony of the medical examiner or “camp surgeon” of the defendant, he being called as a witness by plaintiff, was equally as positive to the fact that he determined as a result- of his examination of the insured at the time she made her application, that pregnancy was not present at that time. This was • opinion testimony also. It was for the learned trial judge to accept one or the other, or even reject both, and determine the matter for himself from all the evidence in the case. He was no more bound than is a jury, to lend credence to opinion or any other testimony. Furthermore, there was proof tending to establish the defense of estoppel, the estoppel arising over the fact that defendant had made assessments and had received payments thereon from the insured not only after the fact of pregnancy was manifest but after the insured had been confined. So that there were facts in the case for the determination of the learned trial judge on which he could find either way and his conclusion upon those facts is not open to review by us. This power of the trial judge, in acting on testimony has been very recently gone into and the authori
For these reasons, without attempting to set out the authorities as to the difference between what are called regular old line life insurance companies and fraternal, benevolent associations, in the matter of warranties and representations, for they have been very numerous in this state, we hold that the demurrers interposed by appellant, so far as appears by the record in this case, were properly overruled and that the finding and judgment of the learned trial court are sustained by substantial evidence in the case. So far as plaintiff is concerned, he made out a prima facie case. The learned trial court is further sustained in its finding by the lack of evidence, which, to maintain the defense contended for, appellant was bound to have introduced. The judgment of the circuit court is affirmed.