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ment, as Anthony testified, that "he would pay board and live with us, and my wife would fix things up for him."

Deceased's waiver of lost certificate, in which he changed beneficiaries, signed on July 20, 1913, while he was "living in his own home," concludes as follows:

"I agree that the new benefit certificate hereby applied for shall be issued on and in consideration of my application for membership and benefits, and that said application, as it may be affected by the by-laws of the society now in force, shall be the basis of and the consideration for the issuance and delivery to me of such new benefit certificate."

Defendant's by-laws specify who mav become beneficiaries as follows:

"Benefit certificates shall be made payable only to the wife, surviving children, or some other person or persons specially named in said benefit certificate as beneficiary, who are related to the member as heir, blood relative (blood relative meaning relationship not further removed than cousin in first degree), or persons dependent upon him, or member of his family whom the applicant shall designate in his application.'

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Plaintiff Ludwica Sowiczki bore to the deceased none of the relationships designated, nor was she dependent upon him, or a member of his family, either when he designated her as beneficiary or at the time of his death, although he became a boarder for pay in her home a few weeks before he died. Had she been designated by deceased in his application as a person dependent upon him, or as a member of his family, there might be possible color for the contention that such designation would relate to and speak from the time of his death, which would invite a more careful consideration in that connection of the word "family," recognized as "an expression of great flexibility" (Carmichael v. Benefit Ass'n, 51 Mich. 494 [16 N. W. 871]) ; but she was only brought within the class who might

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be beneficiaries by untruthfully designating her as a "sister" of deceased, just as Anna was described as his wife, while it is admitted she was not.

Anthony Sowiczki testified that deceased told the clerk of the local camp that Ludwica was his brother's wife, which is denied by the clerk, and it is urged in behalf of plaintiffs that this raised a question of waiver which should have been left as an issue of fact to the jury. The contract of insurance was with the Great Camp, and by section 39 of the by-laws of the order to which the insured subscribed the clerk of the local camp could not waive this provision. Showalter v. Modern Woodmen of America, 156 Mich. 390 (120 N. W. 994); Larkin v. Modern Woodmen of America, 163 Mich. 670 (127 N. W. 786).

The more serious and meritorious objections, however, reaching the validity of this entire benefit certificate, are the answers deceased made to plain and pertinent questions bearing directly on his prospects of longevity at the time he first applied for membership and his warranty that he was in good health when reinstated. Under the by-laws tender of assessments for reinstatement by a suspended member is a warranty of then good health, and retention of such assessments until the head clerk or board of directors learns that such member was not in good health when he attempted to reinstate is not a waiver of suspension, and, if he was actually in poor health, will not have the effect of reinstating him nor entitle him or his beneficiaries to any rights under his benefit certificate. Anna Sowiczki, who separated from deceased a little over two weeks before he applied for reinstatement, testified that he was in poor health for over a year before that time, and had consulted several physicians who attended him when ill; that at times he would not be able to work, had pain in his back, stomach, and lungs, coughed, and she had seen him spit

blood often. On August 19, 1913, Dr. Laschajewski, who was called to attend him professionally, found that he was suffering with an advanced stage of tuberculosis, which soon proved fatal. Upon this subject the physician testified in part:

I believe Steve Sowiczki was suffering from a chronic form of tuberculosis. For a chronic form of tuberculosis to reach an advanced stage is somewhat dependent; as a rule it takes a few months any way.

* * I am as positive as any man can be positive that the man was not in good health July 20th.

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He had been suffering in that condition for at least several months. It is generally conceded consumption is a lingering disease. It is a slow developing disease. It may take several months, and it may take years. I know a large part of the

lung was destroyed."

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It is urged by the defense that such testimony shows conclusively, as a matter of law, against any testimony of plaintiffs, that deceased was not in good health when he applied for reinstatement. While this testimony is persuasive, there was also testimony of a contradictory nature. Plaintiffs' claim and theory is that death was caused by quick consumption resulting from a recently contracted cold. Other witnesses called by plaintiffs, mostly relatives or of his nationality, testified that he was, on and about July 20th, a strong, healthy man, working regularly as a watchman at that time, and was sick but a few weeks before his death. Blanche Kubina, in explanation of her observations of the recent development of his fatal illness, testified that when she saw him at Anthony's home about three weeks before his death he shook as if he had a cold, and said to her "I got awful sore because Anna left me, and I was on a drunk and I caught cold."

As a general rule, the question of whether a person is in sound or good health at a particular time is one of fact for the jury, if the evidence is at all conflicting

and we cannot under such testimony hold as a matter of law that there was no issue of fact as to whether on July 20th deceased was, or believed himself to be, in good health. But the testimony of his physician as to the nature of the disease of which he died, and of the woman with whom he then lived as to his health at and during most of the year following the time he joined the association, has a material bearing on the significance and good faith of his answers when applying for membership. In Maine Benefit Ass'n v. Parks, 81 Me. 79 (16 Atl. 339, 10 Am. St. Rep. 240), a case in which it was held that the insured had misrepresented and misled by answering that she was in good health when she was, in fact, in a consumptive or tubercular condition, that court made the following pertinent observations:

"The good faith of the answers should be perfect. The presence of it goes very far to protect a policy; while want of it would be an element of great power in the defense."

A copy of deceased's application, including questions asked and his answers as signed by him, was attached to and made a part of his benefit certificate and contract of insurance, with the following notice immediately under his signature:

"A copy of your application for membership is included in or attached to this certificate-read it. If any answer or statement therein is not correct notify the head clerk at once."

Amongst the plain and direct questions asked and answered by deceased were these:

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"Are you married? Yes. If so, when? Sept. 10, 1904. Where? Detroit, Mich. Have you within the last 7 years consulted any person, physician or physicians in regard to your health? No. (If this was answered affirmatively, ailments, dates and duration of attack, name and address of physician con

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sulted or by whom treated were required.) Have you ever had, or has any physician ever treated you for, or advised or informed you that you ever had (naming certain diseases) or any other disease, or any disease of the liver or have you ever had * * ** spitting of blood or other hemorrhages? No."

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All these answers were untrue. He was never married, had consulted several physicians in less than seven years prior to that time, had been sick, unable to work, spit blood, and treated by a physician for a serious ailment scarcely two months before. Dr. Buss testified that he was called professionally to treat deceased at his home, and visited him in that capacity two or three times during the week previous to May 31, 1912; that he was then sick, unable to work, confined to his bed part of the time, said he had vomited blood, and thought he was seriously sick; that witness in examining him did not make out there was anything the matter with his lungs, and pumped out his stomach to see if there was anything wrong with it, and made a tuberculine test to ascertain "if there was any infection of tuberculine there," and says, "At the time I examined him that week I came to no conclusion." A Dr. Panzner was also called to visit deceased on June 3, 1912, and testified that he found him sick in bed, but made only the one visit, because he learned another physician had the case. He stated that on that visit he diagnosed the patient's ailment as "probable cirrhosis of the liver," and told him "he had trouble in his liver," but was not positive of his diagnosis, because he "did not think one examination was sufficient." Whatever his ailment at that time, it is undisputed that he was then sick, seriously as he himself thought and said, consulted with and was visited and treated by two physicians for a serious personal ailment of some kind, barely two months before

192 Mich.-18.

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