Dinan v. Supreme Council of Catholic Mutual Benefit Ass'n

Opinion by Mb. Justice Potteb, This action was brought by Dinan and wife, in right of said wife as daughter of Charles B. Coll against the Supreme Council of the Catholic Mutual Benefit Association to recover the sum of $2,000 upon a benefit certificate issued by the said association to the said Charles B. Coll upon October 15, 1891, and payable to his said daughter as beneficiary. Upon the trial the defendant admitted the issuance of the benefit certificate and that proof of death had been duly made but denied the right of the plaintiff to recover; upon the ground that he had misrepresented his age in his application for membership. It appears that the constitution of the defendant association confines its membership to persons not over fifty years of age at the time of initiation. In his application for membership, Charles B. Coll stated his age as less than fifty years, at the same time signing an agreement, stipulating that compliance on his part with all the laws, rules and requirements of the association was the express condition of his participation in the beneficiary fund. And further certifying that the answers made by him to the questions in the application were true. It was contended by the defendant and testimony was offered tending to show that as a matter of fact the said applicant was considerably more than fifty years of age at the time of his initiation, and that by reason of this erroneous or false statement by the applicant at the date of the issuing of his benefit certificate it was rendered void and of no effect. By the refusal of the plaintiffs’ first point for charge, and the affirmance of the defendant’s second point, the court said to the jury that it was immaterial whether the statement as to his age, as made by the applicant, was intentionally and wilfully false. If it was, as a matter of fact, false, the verdict should be [367] for the defendant. In this ruling the court was entirely right. The insured stipulated for the absolute truth of the statements made in his application, and he must be held to his warranty. The first and second assignments of error are therefore overruled. The fifth, sixth, seventh, eighth and ninth specifications of error are clearly in disregard of the requirements of rule 31 of this court and will therefore not be considered. However, the material matter of complaint upon which they are based is substantially raised in the third and .fourth assignments of error, which complain of certain portions of the charge of the court, referring to the admission of certain testimony. First as to the admission of a certificate of the board of health, showing a record of his death, as being some evidence of the age of Charles B. Coll. The certificate was clearly incompetent for any such purpose. It appears from the evidence that its statement as to the age of the deceased was based upon nothing except the report of the undertaker, and that his report rested in turn upon nothing more than statements to him by members of the family of the deceased. The purpose of the certificate was to facilitate and control the disposition and interment of the body, and the declaration which it contained as to age was a mere incident. The introduction of the certificate to the jury, as an element for consideration in determining the age of the deceased, was an application of it which cannot be justified. The other matter of which complaint is made was the introduction of an engraved coffin plate, which stated the age of the deceased at sixty-five. This was also prepared by the undertaker, and was based upon the same uncertain sources of information. He states in his testimony that wlien he was making inquiries of the members of the family as to the particulars, for the preparation of the obituary notice and the plate on the casket, that the age of the deceased seemed to be a matter of doubt. Some said it was fifty-eight, others that it was sixty, and some said sixty-three. He put it down as sixty-five. The result thus reached certainly had no value as testimony. How much the jury may have been influenced by evidence of this character we cannot say. Undoubtedly there was other evidence in the case upon which the jury might have reached the same conclusion. The case turned entirely upon the age [368] of the deceased, and the plaintiffs were entitled to have the question considered free from the possible embarrassment of an apparently official certificate, and the subtle influence of an engraved coffin plate, and a printed obituary notice. None of these things had any bearing upon the question at issue. The third and fourth assignments of error are sustained. The judgment is reversed and a venire facias de novo awarded.