{ "id": 2672719, "name": "Katherine E. Maloney, Appellee, v. North American Union, Appellant", "name_abbreviation": "Maloney v. North American Union", "decision_date": "1908-10-08", "docket_number": "Gen. No. 13,958", "first_page": "615", "last_page": "625", "citations": [ { "type": "official", "cite": "143 Ill. App. 615" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "177 Ill. 27", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3152485 ], "opinion_index": 0, "case_paths": [ "/ill/177/0027-01" ] }, { "cite": "85 Ill. 537", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2776749 ], "opinion_index": 0, "case_paths": [ "/ill/85/0537-01" ] } ], "analysis": { "cardinality": 816, "char_count": 18944, "ocr_confidence": 0.493, "pagerank": { "raw": 8.138363859351185e-08, "percentile": 0.471188281633408 }, "sha256": "398bd3869092d513aa63483cc8a8f38e86de92efb84d7ab4abf0b9b4ea808347", "simhash": "1:b32fdceecf2e9a03", "word_count": 3268 }, "last_updated": "2023-07-14T18:28:23.290304+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Katherine E. Maloney, Appellee, v. North American Union, Appellant." ], "opinions": [ { "text": "Mr. Justice Brown\ndelivered the opinion of the court.\nThe plaintiff in this case recovered in the Municipal Court of Chicago a judgment of $1,045.76 against the defendant, a fraternal order, of which one Steven A. D. Kellett, the husband of the beneficial plaintiff, had in his lifetime been a member. The judgment was based on the instructed verdict of a jury. From it the defendant appealed to this court, assigning various errors, which in argument resolve themselves into the refusal of the trial judge to admit certain matters offered in evidence by the defendant, and his peremptory instruction, to the jury .to find for the plaintiff in the sum named.\nThe certificate of membership of Steven A. D. Kellett in the North American Union was first offered in evidence by the plaintiff. It was issued to him under date of October 24, 1905, and provided:\n\u201cThat upon condition that the statements made by said member in his application for membership, the representations, statements and agreements, made and subscribed by him in the medical examiner\u2019s blank and the answers made and certified by him to the medical examiner, all of which representations, agreements, statements and answers are hereby acknowledged and declared by him to be warranties, be made a part of this contract, and upon condition that the said member complies with all the Laws, Bules and Begulations now governing the said North American Union and the members thereof, and the Mortuary and Beserve Funds thereof, and that may hereinafter be enacted to govern the same, all of which said Laws, Bules and Begulations are also made a part of this contract, and upon said member assenting to and complying with all the conditions herein provided, the North American Union does hereby promise to pay out of its Mortuary Fund to Katherine E. Maloney, related to him as sister, the sum of One Thousand Dollars, in accordance with and under the provisions and the laws governing the said fund, upon satisfactory proofs of the death of said member, and upon the surrender of this certificate, provided that said member is in good standing in this Association at the time of his death, and provided also that this certificate shall not have been previously surrendered by said member or canceled in accordance with the laws of this Association.\u201d\nThe death of Steven A. D. Kellett on the 25th day of January, 1906, was admitted, and it was also admitted that he died in good financial standing with tlie company, that his assessments were paid for November and December, 1905, and January, 1906; that the proofs of his death were made in the proper time to the company, and demand therefor was made within three months after his death, and that payment was refused.\nThe plaintiff then offered in evidence an assignment of the claim on the certificate or policy, as follows: \u201cI hereby assign all right and title in policy No. 22239 issued by the North Am\u00e9rican Union for $1,000, against the life of Stephen A. D. Kellett, to Mrs. Catherine E. Maloney, his sister, to Mrs. Nellie Kellett, wife of above named Stephen A. D. Kellett, deceased,\u201d and rested.\nThe defendant had pleaded the general issue and also three special pleas, one setting up untrue answers in the application, alleging them to be warranties, and that their falsity and evasion and concealment in other answers avoided the policy; the others are that the policy was obtained by fraud and conspiracy for a person in an unhealthful condition, and was void.\nThe defense that there was a conspiracy to obtain this insurance was abandoned by the defendant in opening to the jury, and it relied entirely on the position that certain warranted statements in the application by the deceased were untrue, and that the deceased had been guilty of evasion and concealment when being examined for the insurance.\nTo substantiate this defense the defendant first presented as *a witness Dr. Bepogie, a physician residing in- Chicago, who said that in October, 1905, he was appointed Medical Examiner for the North American Union, and was also deputed to secure members. He said he pressed the deceased to join and secured his application with difficulty. \u201cI coaid see,\u201d he testified, \u201cthat if I didn\u2019t push him I would not land him. I says, \u2018Just sign this paper,\u2019 and * * * he signed it on the wall.\u201d The paper which was signed was tendered in evidence. It was in four pages. The first page is entitled \u201cMedical Examiner\u2019s Blank of the North American Union.\u201d With the exception of the applicant\u2019s name, birth place, age, etc., it is all _ in print. The only matters claimed by the defendant to be of importance in this controversy in it, .except a clause which warrants the truthfulness of the statements made therein, and consents that any untrue or fraudulent statements or any evasive answers or concealment or suppression of facts by the applicant, whether the same are material or not, shall forfeit and determine the benefits in the benefit certificate which may be issued thereon, are the words:\n\u201cI am temperate in my habits and have no injury or disease which will tend to shorten my life, am now in good health and able to gain a livelihood;\u201d and the words:\n\u201cI do hereby certify that I have read the foregoing and fully understand the same.\u201d\nThis page was signed by Kellett as applicant and countersigned by Dr. Repogle as Medical Examiner.\nThe second and third pages are entitled \u201cApplicant\u2019s Certificate,\u201d and contain 119 printed questions with answers written to most of them in ink. At the end of them are the printed words: \u201cI hereby warrant truthfulness of all the answers to the above questions,\u201d and the signature, \u201cSteve A. D. Kellett, applicant.\u201d\nThe fourth page was the \u201cMedical Examiner\u2019s Certificate,\u201d signed only by him.\nOn further examination of Doctor Repogle it appeared that the paper was entirely blank except as to the printed matter when it was signed in the two places by Kellett at the instance and urging of the Doctor, and that it was so signed in both places before the Doctor asked Kellett any questions in regard to his health; also that it was so signed by Kellett on October 19th and the written matter inserted by the Doctor on October 22nd.\nUnder these circumstances the court admitted the first page in evidence but rejected the 2nd, 3rd and 4th pages. We think this rejection was proper. Illinois Mason\u2019s Benevolent Society v. Winthrop, 85 Ill. 537; The Royal Neighbors of America v. Boman, 177 Ill. 27.\nIt is needless to inquire whether the \u201canswers\u201d were warranties, the inaccuracy of which would avoid the policy, since as a matter of fact they were not \u201canswers\u201d at all, were not signed by the applicant, and were written in by an agent of the defendant \u2018 \u2018 deputed to secure members\u201d, long after the signature.\nCertain questions, however, were asked by the Doctor of Kellett after the signatures were secured. One of them, and the answer thereto, was testified to by Dr. Bepogle as follows:\n\u201cQ. Now what questions did you ask him in regard to his health and his previous past condition?\nA. I asked him whether he ever had any serious illness or injury, after I got through examining him physically.\nQ. What did he say?\nA. He pointed to a scar on his head and replied that he had been stabbed. I don\u2019t know whether he said he was stabbed or cut or shot, but stabbed or shot. He said he was shot or stabbed, one of the two, up here (indicating), just a scalp wound, took a couple of stitches or \"something like that, and I found it wasn\u2019t of any serious consequence in my examination.\nQ. What, if anything, did he say about his health?\nA. He did not reply except in that way.\u201d\nWe are unable to see that, assuming that Kellett had had a serious illness\u2014as the evidence afterward tended to prove\u2014this answer, relied on by the defendant to show \u201ca fraudulent evasion or concealment\u201d which would avoid the policy, had any such tendency, or should have gone to the jury on the theory that they should be allowed to judge whether or not it did.\nIt was not a refusal to answer; it was the pointing out of one \u201cinjury,\u201d and not a \"concealment or evasion\u201d as to others. The medical man\u2014who was the agent of the Society\u2014should have inquired further if he desired to know. A reason for his not doing so perhaps can be gathered from his testimony, in which he says:\n\u201cI told him to take off his coat * * * He removed his coat and I took his measurement around the waist\u2014inspiration; * * * took his vest off; took his pulse; examined his heart with a stethescope. He was a well developed man; he looked like a good risk\u2014better than any of you fellows here. I examined his heart carefully. While I was examining him he made the remark, I have been an athlete for some club down town,\u2019 and he looked like an athlete, and I examined his heart then more carefully, because athletes usually have a weak heart; sometimes they do. * * * I found nothing the matter with his heart at all; he had good expansion, lungs were good; in fact he looked so good that * * * I got through with the examination very quickly without asking many questions, because I took it for granted he was all right. I had a bottle with me and after I got through I asked him to fill it for me. I mean for specimens of urine. When I examined him his shirt was up. I examined his naked skin. * * * He didn\u2019t have a pimple on him or anything.\u201d\nIrrespective, therefore, of whether or not the proof showed that the insured had, prior to this examination, a \u201cserious illness or injury,\u201d this attempt to show \u201cfraudulent evasion and concealment\u201d\u2014an affirmative defense\u2014entirely failed and should not have prevented, as it did not, an instruction that there' was no defense to the action.\nThe first page of the \u201cMedical Examiner\u2019s Blank,\u201d however (which first page was received in evidence), contained the statement, signed by the applicant, \u201cI * * * have no injury or disease which will tend to shorten life; am now in good health,\u201d etc. This statement is warranted by the terms of the application, and the applicant signed the same and a certificate that he had read and fully understood the same.\nWe shall assume, without reference to the circumstances under which he signed this, that the statement was a warranty and that the deceased was bound by it. But with some hesitation we have come to the opinion that there was neither any evidence offered and received nor\u2014when taken in connection with the proven and admitted facts\u2014any offered and excluded, which would have \"proven the falsity of this statement.\nIt was in the present tense; it was a statement of his present condition. To show its falsity the defendant introduced the testimony of Dr. McCandless, who testified that in 1903, two years, that is, before the application, he had treated the deceased for syphilis during six months. But McCandless also testified in his direct examination, in answer to the interrogatories of the plaintiff\u2019s counsel, as follows:\n\u201cQ. You may state whether or not syphilis is a disease that would tend to shorten the life of a person that was afflicted with it to the same degree that this patient was at the time you treated him in 1903.\nA. I firmly believe that it positively will not if properly treated.\nQ. You may state whether or not you had discharged this patient as cured?\nA. I certainly believed he was cured. I saw him continuously; he was a neighbor of mine.\u201d\nHe also testified in cross-examination as follows:\n\u201cQ. Do you now ever recall having told Mr. Kellett that you believed he had syphilis? A. No, I don\u2019t remember that.\nQ. As a matter of fact, your recollection is that yon did not tell him\u2014is that correct?\nA. I don\u2019t remember ever telling him.\u201d\nThe real and doubtful question in this case is whether in consideration of this testimony by the defendant\u2019s own witness, who was the medical attendant of the deceased, by whom alone the defendant proved that he had had syphilis, the defendant should have been allowed to introduce further testimony of experts under the following offers:\n\u201cWe offer to prove by medical experts that the symptoms as given by Dr. McCandless of this patient in his last illness, together with the history of his case in 1903 as treated and testified to by Dr. McCandless, shows that the cause of his death was the result of syphilis or that his death was caused by syphilis. \u2019 \u2019 \u201cPlaintiff\u2019s Counsel: To which the plaintiff objects.\nThe Court: Objection sustained.\nDefendant\u2019s Counsel: Exception.\u201d\nAgain\u2014\u201cDefendant\u2019s Counsel: I further offer to prove by physicians that paresis and syphilis, or either of them, are diseases that tend to shorten the life and that syphilis and paresis are both incurable diseases. Plaintiff\u2019s Counsel: To which we object.\nThe Court: Objection sustained.\nDefendant\u2019s Counsel: Exception.\u201d\nThe allusion to paresis in this offer is explained by this situation: The defendant had proved by an interne in St. Luke\u2019s Hospital, named Clark, that in October, 1904, Kellett had been admitted to said hospital and had remained there for at least twenty days; that he had been admitted as suffering from varicocele, that is a varicose condition of the veins of the scrotum. This is all that was proven, but the defendant, when Clark was on the stand, had offered a paper, which Dr. Clark said was a card from a card index kept by the hospital as a record of the admission and dismissal of patients. The witness did not know who wrote it, but said it was one of the records kept by the hospital. It was not admitted nor otherwise identified, but it is inserted in the record, and on it appears, among other data which give the description of the person, the words \u201cAdmitting diagnosis,-\u2014-Varicocele.\u201d There is also on this card, or on some other document also offered in evidence under the same conditions, but not admitted (the record is obscure on this point), a \u201cconsent\u201d to any operation which the operating surgeon at the hospital might think necessary, and after this, this memorandum:\n\u201cDate Discharged. Condition. . Diagnosis.\nNov. 5, 1904. Cured. General Paresis. Left\nVaricocele.\u201d\nThis allusion to \u201cparesis\u201d is, so far as we find, the only one in the record, except as it appears in the offer noted above and in this further offer by defendant\u2019s counsel:\n\u201cWe offer to prove that this Stephen A. D. Kellett was treated in St. Luke\u2019s Hospital from October 8, 1904, until November 5,1904; that he was operated on for varicocele during said period, and that his case was diagnosed and he was treated for paresis, and that on October 12, 1904, he signed a written consent to an operation in the hospital.\u201d\nThis offer was also refused by the court.\nAs further showing the situation at the time these offers were made, it may be noted that Dr. McCandless testified that Kellett died \u201cfrom convulsions due to traumatic or mechanical injury to the brain,\u201d and that \u201che had fallen from a chair and had an abrasion on his temple on the side of his head where it had evidently struck some hard object or pointed object.\u201d\nThe counsel for defendant asked the Doctor, without objection, \u201cDid you get any history of his case that led you to make that diagnosis?\u201d and received in response, without objection, the following answer:\n\u201cYes, I received information of a member of the family of his having had a severe beating while in the employ of the Telephone Company.\u201d\nWhen this beating occurred, if it did occur, does not appear.\nThe hospital \u201cadmission card\u201d was plainly incompetent.\nIt is to be noted that the offers were exceedingly general. No specific witness was offered and no specific questions were asked, and the effect of the general testimony as to the curability of syphilis suggested would have been directly to contradict the witness as to this particular case, which the defendant had itself offered. We think that the court, under the record as it then existed, did not commit reversible error in refusing on the general offer, without individualization, to enter on a war of expert testimony on the scientific question of the curability or incurability of syphilis.\nAs to the \u201cparesis,\u201d there was no foundation laid for the offer. The course adopted, if there was ability to prove it, was not the correct one. A witness should have been produced who knew the alleged fact offered to be proven, and a question asked him.\nA death certificate signed by Dr. McCandless and on file in the Bureau of Vital Statistics in the Department of Health of Chicago, and certified by the Registrar of the Bureau, was offered by the defendant, and refused by the Court. It was marked for identification and appears in the record. It' states the \u201cCause of death\u201d as \u201cConvulsions due to Brain Tumor,\u201d and the \u201cDuration of Disease\u201d as \u201c3 years.\u201d\nWhether or not this would have been competent to prove the cause of death and other matters contained in it, if Dr. McCandless had.not been placed on the stand himself by the defendant, it is needless to inquire. It was not competent as offered by defendant to impeach its own witness, or to supply, by wholly unsifted statement, what he could have been and indeed was examined and cross-examined on in open court.\nIf these various rulings of the court were right in rejecting offered evidence, then it follows that there was no error in instructing the jury to find for the plaintiff to the amount of the certificate and interest. By the evidence which was admitted it was plain that the defendant did not sustain the affirmative defense it had taken upon itself to make. The prima facie case made by the plaintiff was left untouched and the verdict and judgment necessarily followed.\nThe judgment of the Municipal Court is therefore affirmed.\n\u2019Affirmed.", "type": "majority", "author": "Mr. Justice Brown" } ], "attorneys": [ "R. E. Hamilton, for appellant; Robert S. Iles, of counsel.", "William C. Asay and Jeremiah B. O\u2019Connell, for appellee." ], "corrections": "", "head_matter": "Katherine E. Maloney, Appellee, v. North American Union, Appellant.\nGen. No. 13,958.\n1. Insurance\u2014wliat not warranties. Answers or alleged answers written into an application by an agent deputed to secure members, inserted long after the signature of the applicant, do not constitute warranties.\n2. Insurance\u2014when defense of fraudulent concealment not sustained. Held, under the evidence in this case, that the defense interposed of \u201cfraudulent evasion and concealment\u201d entirely failed.\n3. Insurance\u2014what not warranty against past illnesses. The \u2022following answer; \u201cI * * * have no injury or disease which will tend to shorten life; am now in good health,\u201d being in the present tense, is not a warranty against past injuries or diseases.\n4. Evidence\u2014what witness may not he impeached. A written statement made by a witness is not competent when used by the party who produced such witness if the effect of the production of such written statement is to impeach such witness.\nAssumpsit. Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.\nHeard in this court at the October term, 1907.\nAffirmed.\nOpinion filed October 8, 1908.\nR. E. Hamilton, for appellant; Robert S. Iles, of counsel.\nWilliam C. Asay and Jeremiah B. O\u2019Connell, for appellee." }, "file_name": "0615-01", "first_page_order": 633, "last_page_order": 643 }