Evans v. Modern Woodmen of America

REYNOLDS, P. J. (after gtating the factg).— Cases involving the liability of companieg organized to carry , on buginegg on what ig called benefit or benevolent ingurance, have been go frequently before the appellate courtg of the country, that it ig unneceggary to get out with great particularity the regtrictiong and Iimita-tiong thrown around their memberg by the congtitution, by-lawg and certificates of membership issued by them. With the idea that these organizations were benevolent, charitable and non-profit sharing, our lawmakers have been exceedingly liberal toward them, and have exempted them from practically all the laws of our State, governing old-line or regular insurance companies, and while by the laws relating to these latter, both by letter as well as construction, hardly any defense is open or available to an old-line, regular insurance company, and they are rarely before our courts as defendants, the benevolent or fraternal, as well as assessment companies, are constantly in court with exceedingly technical defenses, the doctrine of representations and warranties, in all its rigors of interpretation being available to them. This, however, is a matter entirely under control of our Legislature, which has seen fit to adopt it as the policy of the State, and with which the courts, beyond enforcing and interpreting the law as enacted, have no concern. We make these observations because of the fact that none of the defenses herein set up by this defendant would be available, in favor of an old-line, regular life insurance company. Fortunately for the members of these benevolent associations, the determination of the fact of the defenses set up is left to the juries of the land. While it may be conceded in this case that the evidence of the defendant tended to show that the deceased was frequently intoxicated, and while, the evidence is without contradiction that he was killed in a fight which the evidence strongly tends to prove was brought on by himself, and while there is a [173] discrepancy of a year in Ms age between that stated by himself and that stated by the plaintiff when he was making the proofs of death, these matters were all matters of fact to be determined by the jury under proper instructions. In this case they are so well and carefully and thoroughly covered by the instructions which the court gave, that we cannot say that the jury were either misdirected or lacking in proper direction, or that their verdict is unsupported by substantial evidence. in the case. Without going into an examination of the authorities which the learned counsel on each side, with such great care and industry, have cited, it is sufficient to say that none of the authorities to which our attention has been called justify us in overturning this verdict, on the grounds assigned by defendant. Especially is this so as to the alleged misrepresentation as to age, or variance, more accurately speaking, between the date of his birth given by the insured and the date of his birth given by the plaintiff when making proofs of loss. This question of the discrepancy was submitted to the jury by such fair and full instructions that we could only disturb their verdict on this part of the case by holding that there was no evidence upon which to found the instruction itself, and we cannot do that, as we cannot say that. It is true that the testimony of the plaintiff in explanation of his knowledge of the true date of birth of the insured is not very satisfactory and rather meager, but that matter was fairly submitted to the jury under the instructions given at the instance of plaintiff, and its probative weight was for the jury. It is true defendant asked for a direction for a verdict on this, but we hold that to have been correctly refused. In Connecticut Mut. Life Ins. Co. v. Schwenk, 94 U. S. 593, a case in which it appeared that the plaintiff in making proof of death had stated the age of the deceased differently from that stated by the deceased himself in his application for membership, it further [174] appears that the plaintiff, in explanation of this, had testified, in substance, that he had no positive knowledge of the age of the deceased, and that the age fixed by him in his affidavit was a mere impression founded upon the appearance of the deceased. This explanation of the variance is no more satisfactory than that given by the plaintiff in this case, but upon it the court held that it was sufficient to obviate the effect of the statement contained in the proofs and sufficient to raise an issue of fact to be determined solely by the jury. To the same effect, and referring to similar statements not based upon actual knowledge, are the decisions of the Supreme Court of Louisiana in Leman v. Insurance Co., 46 La. Ann. 1189, and that of the Superior Court of Pennsylvania in Baldi v. Met. Life Ins. Co., 24 Pa. Sup. Ct. 275. So the Supreme Court of Wisconsin held in Bachmeyer v. The Mut. Reserve Fund Life Ass’n, 82 Wis. 255. Appellant cites-us in opposition to this position and in support of its proposition that the proofs of death furnished to the-society are prima facie evidence of the facts therein stated, and are conclusive unless the beneficiary shows that the statements made therein were erroneous or were given through mistake, to many cases, among others, Insurance Co. v. Newton, 22 Wall. 32; Hassencamp v. Mut. Ben. Life Ins. Co., 120 Fed. 475, and Almond v. Modern Woodmen of America, 133 Mo. App. 382, 113 S. W. 695. An examination of these cases and of the other authorities cited do not, however, militate-against the rule laid down in the cases which we have-above noted. Nor do the cases of Reichenbach v. Ellerbe, 115 Mo. 588, 22 S. W. 573; Carroll v. Interstate-Rapid Transit Co., 107 Mo. 653, 17 S. W. 889; and Lavin v. Grand Lodge A. O. U. W., 104 Mo. App. 1, 78 S. W. 325, cited by appellant, bear on this particular-matter or throw light upon it. The effect and the point-decided in those cases is that where the uncontroverted evidence showed a forfeiture of membership, it is the175 duty of the trial court to direct a verdict for tbe defendant. That proposition is not disputed, but does not meet the facts in this case, because the testimony of the plaintiff in this case was of such a character as to leave the determination of the real fact as to whether the insured had misstated his age himself or whether the plaintiff himself was in error, to the determination of the jury. This brings the case at bar within the case of Gannon v. Laclede Gaslight Co., 145 Mo. 502, 46 S. W. 968, in which the Reichenbach case is practically criticised out of existence as authority for the proposition here relied upon by appellant. It might well be that the jury concluded, from the testimony of the plaintiff as to the vagueness of his information as to the date of the birth of his brother, the insured, that the statement of the insured was more likely to be correct than that of the claimant, the latter’s statement based on such very indefinite information, falling short of knowledge. At any rate, there wras enough before the jury, taking into consideration the application of the insured and the testimony of the plaintiff, to warrant the jury to determine as a fact whether or not there had been a misstatement of the insured in the application which he had made for membership, and after all the real fact to be determined in the case was the fact of age and not what some one else, even the plaintiff there, may have said about it. The questions of whether the deceased was intoxicated at the time he met his death, or whether he was intemperate between the time of his connection with the defendant corporation and his death, were fully submitted to the jury on instructions of which appellant has no right to complain. The testimony in the case would justify the finding either way and by their verdict, the jury found against the defendant. In saying this, however, we do not wish to be understood as holding that the instruction marked “D,” which the court gave at the instance of plaintiff, is a correct defi [176] nition of the term “intemperate.” As will be noted in the instruction, the court defined “intemperate,” as used in the instructions, to mean “the excessive or habitual use of intoxicating liquors.” This is not accurate. Intemperance, having reference to the use of liquor, may be defined to be the* habitually excessive use of intoxicating liquors. It is not correct to say that the habitual use of intoxicating liquor constitutes intemperance, for while the habitually excessive use of intoxicating liquor is intemperance, the habitual use of intoxicating liquor is not intemperance, unless the habitual use is also excessive to the extent of producing intoxication. As this, however, was an error against the plaintiff, who is respondent, it is, of course, no ground for reversal. The refused instruction No. 2, which the defendant asked, covering the matter of intoxication, was more nearly correct than that given at the instance of plaintiff, but even that is not accurate, unless we interline in it after the word “use,” the word “habitual,” for an occasional use of intoxicants, even to the extent of drunkenness, as for instance one or two acts of over-indulgence in liquor, to the extent of intoxication, does not necessarily mean that the party so indulging is intemperate in the sense of the law. There is one error connected with the case that we cannot pass over in silence, and that consists in the admission of the testimony offered on the part of the plaintiff, to the effect that at no time had the deceased been tried by the local camp for intemperance or any other offense. This evidence was improperly admitted, but we are not prepared to say that its admission was so material and so important as to seriously and materially damage the defendant. Under the facts in the case, we' cannot hold that its admission was reversible error. Our conclusion upon the whole case is that the verdict and judgment of the lower court are [177] right. Accordingly the judgment must be and is affirmed. All concur.