Whitney v. National Masonic Accident Ass'n, No. 8796

No. 8796 | Minn. | Jun 12, 1894

Collins, J.

The defendant is a mutual benefit association organized under the laws of the state of Iowa for the purpose of indemnifying its members by payments in money on account of accidents occurring to them, the necessary money being raised solely by assessments upon the members. This plaintiff became a member in June, 1890, and brought this action to recover the stipulated weekly indemnity for seventeen weeks and four days, because of an accident which befell him in January, 1891. The case has been here before. 52 Minn. 378" court="Minn." date_filed="1893-01-28" href="https://app.midpage.ai/document/whitney-v-national-masonic-accident-assn-7967781?utm_source=webapp" opinion_id="7967781">52 Minn. 378, (54 N. W. 184.)

The association, at the second trial, resisted payment solely upon the ground of an alleged fraud committed by plaintiff when making application for membership. This application was made out and talien by one Crane, said to be defendant’s agent, and contained the following statement or warranty: “10. I have never had * * * any bodily or mental infirmity;” and in the certificate of membership forwarded to plaintiff in due season after the association received the application was the following condition: “This insurance does not cover * * * nor accident, nor death or disability resulting wholly or in part, directly or indirectly, from any of the following causes, or while so engaged or effected: suicide, * * * disease or bodily infirmities.”

It was claimed and conceded that, many years before making the anrfiication, plaintiff had so frozen one of his feet that two of his toes and part of the bone back of the little toe had been removed. The result was a numbness in that member, and through this numbness the accident on which plaintiff relied as a cause of action resulted. For the purposes of this discussion it must be taken for granted that the accident in question would not have occurred had there been no previous injury to the foot, and, further, that, within the terms and conditions of the application and certificate, the injury, with its result, amounted to a bodily infirmity. As has been made to appear hereinbefore, the fact that plaintiff had received such an injury was not stated in the application. This brings us to the principal points made by defendant association on appeal from an order denying its motion to vacate and set aside a verdict in plaintiff’s favor, and for a new trial.

1. The rules which were laid down in this court in Kausal v. Minnesota Farmers M. F. Ins. Ass’n, 31 Minn. 17" court="Minn." date_filed="1883-07-11" href="https://app.midpage.ai/document/kausal-v-minnesota-farmers-mutual-fire-insurance-7964295?utm_source=webapp" opinion_id="7964295">31 Minn. 17, (16 N. W. 430,) controlling in cases similar to this, need not be repeated here. Counsel for defendant association do not openly attack their correctness, but, with frequent allusions to the “fraud perpetrated by plaintiff when he signed an application in which he omitted to state that his foot had been frozen many years before, that a small part of it had been amputated, and that the balance was more or less numb,” they attempt to distinguish this case on the facts from that. The charge of fraud, as found summed up at one place in the brief, omitting counsel’s italics, is thus put: “In this case Mr. Whitney says he stated the facts to the agent; the agent notified him that he would not write them down, and that he would write in an answer which the plaintiff knew to be false.” Now, let us examine the undisputed testimony, — that of the plaintiff, — and see if there is anything tending to sustain the claim that he so actively and fraudulently co-operated with the alleged agent in withholding the facts from the association. Mr. Whitney testified that Crane “read the application over to me, and I answered all the questions he asked me. I made a full statement to him as to the condition of my foot, — the cause, etc. He said that it was of no consequence. I stated fully that it was injured by a frostbite, and from an injury received on snowshoes; that two toes and part of the bone back of the little toe were amputated, and sometimes there was numbness about it.” In response to a further question, he said: “What I read here, — number 10, — I remember that he read it to me, and I answered as I have given you. I never read this document until now.” Crane filled out the blank himself as plaintiff answered the questions. The latter knew that it purported to be an application for membership, but did not read it. There is nothing whatever in the evidence tending to indicate that plaintiff participated in the alleged misstatements, or had any knowledge of them. Certainly, knowledge of what Crane was doing, and that he was concealing the real facts, cannot be imputed to plaintiff from Crane’s remark, when informed of the frozen foot and partial amputation, that “it is of no consequence.” If plaintiff could draw any inference from this remark it was that such an infirmity would not influence the officers of the association whose duty it was to pass upon the application, or have any injurious effect in its consideration. We are clearly of the opinion, after an examination of the evidence, that, if misstatements were made and a fraud perpetrated upon the association when the blank application was filled out, Crane was responsible, not the plaintiff. If, then, ft was shown on the trial that Crane was an agent of the defendant association, the case is governed by the Kausal Case, in which it was held, among other things, that where an agent to procure' and forward applications for insurance, either by his direction or direct act, makes out an application incorrectly, notwithstanding all the facts are correctly stated to him by the applicant, the error is chargeable to the insurer, and not to the insured. In conclusion upon this point, we will say that counsel for -daintiff, respondent here, have collected and cited in their brief a great number of cases in line with Kausal v. Minnesota Farmers M. F. Ins. Ass’n, supra, and in which the rules there laid down have been sanctioned and applied.

2. Relying upon the case of Gude v. Exchange Fire Ins. Co., 53 Minn. 220" court="Minn." date_filed="1893-05-09" href="https://app.midpage.ai/document/gude-v-exchange-fire-ins-7967870?utm_source=webapp" opinion_id="7967870">53 Minn. 220, (54 N. W. 1117,) defendant contends that the agency of Crane was not sufficiently established. On the answer we do not think this claim open to defendant, for the acts of Crane in obtaining the application were therein adopted. Again, in its tenth request to charge, the defendant expressly assumed that Crane was its agent, and based its request upon the fact. Further, Crane solicited plaintiff to become a member of defendant association, pretending to be its agent, and produced and filled out the application, which was sent to the association, acted on by it when it issued the certificate, and the certificate was sent by it to Crane, who delivered it to plaintiff, and collected the premium. These facts easily distinguish this case from Gude v. Exchange Fire Ins. Co., supra, and we think there was sufficient evidence of the agency of Crane. Abraham v. North German Ins. Co., 40 F. 717" court="None" date_filed="1889-12-30" href="https://app.midpage.ai/document/abraham-v-north-german-ins-co-9305538?utm_source=webapp" opinion_id="9305538">40 Fed. 717; Hahn v. Assurance Co., 23 Oregon 576, (32 P. 683" court="Or." date_filed="1893-03-28" href="https://app.midpage.ai/document/hahn-v-guardian-assurance-co-6896301?utm_source=webapp" opinion_id="6896301">32 Pac. 683;) Gosch v. Association, 44 Ill. App. 263" court="Ill. App. Ct." date_filed="1892-04-09" href="https://app.midpage.ai/document/gosch-v-state-mutual-fire-insurance-6993563?utm_source=webapp" opinion_id="6993563">44 Ill. App. 263; Pierce v. The People, 106 Ill. 11" court="Ill." date_filed="1883-03-29" href="https://app.midpage.ai/document/pierce-v-people-6961946?utm_source=webapp" opinion_id="6961946">106 Ill. 11; Deitz v. Providence-Washington Ins. Co., 31 W. Va. 851" court="W. Va." date_filed="1888-12-14" href="https://app.midpage.ai/document/deitz-v-insurance-co-6593897?utm_source=webapp" opinion_id="6593897">31 W. Va. 851, (8 S. E. 616;) Insurance Co. v. Williams, 39 Ohio St. 584; Packard v. Dorchester Mut. Ins. Co., 77 Me. 144" court="Me." date_filed="1885-03-05" href="https://app.midpage.ai/document/packard-v-dorchester-mutual-fire-insurance-4934425?utm_source=webapp" opinion_id="4934425">77 Me. 144; Stone v. Hawkeye Ins. Co., 68 Iowa, 737" court="Iowa" date_filed="1886-04-23" href="https://app.midpage.ai/document/stone-v-hawkeye-ins-7102084?utm_source=webapp" opinion_id="7102084">68 Iowa, 737, (28 N. W. 47.) In fact, there seems to be, practically, unanimity in the cases on this point.

There is nothing in the other questions raised by the assignments of error. Order affirmed.

Buck, J., absent, took no part.

On Application for Reargument.

July 9, 1894.

Per Curiam.

In a petition for reargument, counsel for appellant urge that this court overlooked the assignment of error whereby it was claimed that in the reply there was a clear departure from the cause of action set forth in the complaint. Should it be admitted that there was, the point was not properly made upon the trial below.

It is also urged that as it was distinctly held upon the trial that plaintiff was bound to know, and was held to have known, the contents of the application for membership, this court erred in applying the rule of the Kausal Case, 31 Minn. 17" court="Minn." date_filed="1883-07-11" href="https://app.midpage.ai/document/kausal-v-minnesota-farmers-mutual-fire-insurance-7964295?utm_source=webapp" opinion_id="7964295">31 Minn. 17, (16 N. W. 430.) The decision does not proceed upon the theory, as counsel seem to think, that plaintiff can recover because, although he truthfully stated the facts to the agent, the latter, without plaintiff’s knowledge, falsely answered the questions found in the application, but rather upon the theory that plaintiff was misled by representations of the agent as to the character or effect of his answers to the question concerning a bodily infirmity. The rule in the Kausal Case applies, assuming, of course, good faith on the part of the insured, and the absence of collusion between him and the agent; and, using language found in Wood on Insurance (section 407): “to mistakes arising from the misadvice of the agent or his misconception of the legal effect of certain conditions,” the petition is denied.

(Opinion published 59 N.W. 943" court="Minn." date_filed="1894-06-12" href="https://app.midpage.ai/document/whitney-v-national-masonic-accident-assn-7968432?utm_source=webapp" opinion_id="7968432">59 N. W. 943.)