ELLISON, J.
The defendant is a fraternal benefit society and Albert L. Callies became a member thereof' and took out a benefit certificate insuring his life in the sum of $2,000, of which sum $1,000 was to be paid to his mother and $500 to each of two sisters. Callies died about the 27th of May, 1901, at the Asylum in Nevada, Missouri. Each of the beneficiaries brought suit for the sums named payable to them. These suits were consolidated and tried as one. At the close of the trial the court gave a peremptory instruction for plaintiff.
The deceased at time of his application did not use intoxicating liquors and he stated in his application that he had never been intoxicated. He also stated that he had never had a hemorrhage. The certificate provided that he should not become intemperate by the use of. intoxicating drink and that if he did, it became void. There was evidence offered by defendant and excluded by the court that deceased had stated after the certificate had been issued, that he had been intoxicated and that he had had hemorrhages before its issuance. The' evidence tended to show’that deceased died of consumption while in a protracted state of intoxication. The evidence further tended to show that a short time before his death deceased was complained of before the' local lodge for violating the rules and laws of the order and the terms of his certificate by habitually using strong drink and frequently becoming intoxicated. That he was cited for trial of the charge and while it was shown to be true, no sentence of suspension or expulsion was passed. On the contrary, all action thereon was laid over and deferred until he should be released from the asylum.
[526]*526The theory upon which the trial court sustained plaintiff’s objections to the deceased’s declarations as to his having been intoxicated and having had hemorrhages, was that such declarations could not bind these plaintiffs as beneficiaries. We think the theory unsound and that error was committed. The weight of authority, as regards ordinary life insurance, is that the declarations of 'the party insured are not evidence against the person for whom the insurance is taken, and the rule is so stated in a remark in the course of a decision by the Supreme Court of this State. Reid v. Ins. Co., 58 Mo. 425. But as to fraternal benefit insurance where the beneficiary is named by the insured and whom he may change at any time before death, a well-founded distinction exists, for there is no vested interest in the beneficiary in the certificate until it becomes fixed by death. Masonic Ben. Ass’n v. Bunch, 109 Mo. 560; Wells v. Mut. Ben. Ass’n, 126 Mo. 630; Hofman v. Grand Lodge, 73 Mo. App. 47; Niblack on Ben. Soc., sec. 212. It is true that neither has the insured member himself an interest in the fund (Masonic Ben. Ass’n v. Bunch, supra; Keener v. Ins. Co., 38 Mo. App. 543), still he is the opposite party in the contract. Pie has made it from the motive of duty or affection and he is interested in its being upheld. His declarations of things tending against the contract would likely not have been made if not true. They should be received in evidence. They should be regarded as in instances of contract where the representative of the declarant is a party to the action. And so it has been decided. Thomas v. Grand Lodge, 12 Wash. 500; Steinhausen v. Mutual Ass’n, 13 N. Y. Supp. 36; Niblack on Ben. Ass’ns, secs. 212, 325.
Defendant seeks to avoid the effect of the deceased’s misrepresentation and his subsequent conduct by a plea of’ waiver. This consists in the trial aforesaid by the local lodge wherein defendant was charged with using intoxicants and becoming drunk just pre[527]*527vieras to Ms death, and wherein all action was deferred, as has been stated. We are satisfied that such action on the part of the company was a wMver of a forfeiture on account of the matter of use of intoxicants after he took out the policy. But it was no waiver of the fact (if it be a fact) that he had been drunk before his application. A waiver presupposes knowledge of the thing to be waived, and there is no evidence that defendant had any knowledge of Ms being drunk before the application. And so the trial aforesaid discloses that no consideration was given to anything except a violation of his duties after becoming a member and shortly prior to his death. We can not discover any good reason for connecting the two violations in such way as to make a waiver of one affect the other. We discover nothing bearing on the question in the authorities cited by plaintiff.
But plaintiff further insists that if what we have just stated was not a waiver, that the subsequent furnishing blank proofs of loss to plaintiffs and the fact that they went to trouble and expense in making them, constituted a waiver, not only on the question of intoxication but also that of hemorrhage. We think not. There is nothing to show that defendant knew a,t the time the blank proofs were furnished that there had been a misrepresentation as to either of these things having occurred prior to the date of the application.
Deceased at time of application had two brothers alive and one dead. Defendant offered to prove this and that the dead brother died of diabetes. The court rejected this offer. The following questions,' in the following form, and answers thereto, are found in the application made by deceased:
[528]
Free access — add to your briefcase to read the full text and ask questions with AI
ELLISON, J.
The defendant is a fraternal benefit society and Albert L. Callies became a member thereof' and took out a benefit certificate insuring his life in the sum of $2,000, of which sum $1,000 was to be paid to his mother and $500 to each of two sisters. Callies died about the 27th of May, 1901, at the Asylum in Nevada, Missouri. Each of the beneficiaries brought suit for the sums named payable to them. These suits were consolidated and tried as one. At the close of the trial the court gave a peremptory instruction for plaintiff.
The deceased at time of his application did not use intoxicating liquors and he stated in his application that he had never been intoxicated. He also stated that he had never had a hemorrhage. The certificate provided that he should not become intemperate by the use of. intoxicating drink and that if he did, it became void. There was evidence offered by defendant and excluded by the court that deceased had stated after the certificate had been issued, that he had been intoxicated and that he had had hemorrhages before its issuance. The' evidence tended to show’that deceased died of consumption while in a protracted state of intoxication. The evidence further tended to show that a short time before his death deceased was complained of before the' local lodge for violating the rules and laws of the order and the terms of his certificate by habitually using strong drink and frequently becoming intoxicated. That he was cited for trial of the charge and while it was shown to be true, no sentence of suspension or expulsion was passed. On the contrary, all action thereon was laid over and deferred until he should be released from the asylum.
[526]*526The theory upon which the trial court sustained plaintiff’s objections to the deceased’s declarations as to his having been intoxicated and having had hemorrhages, was that such declarations could not bind these plaintiffs as beneficiaries. We think the theory unsound and that error was committed. The weight of authority, as regards ordinary life insurance, is that the declarations of 'the party insured are not evidence against the person for whom the insurance is taken, and the rule is so stated in a remark in the course of a decision by the Supreme Court of this State. Reid v. Ins. Co., 58 Mo. 425. But as to fraternal benefit insurance where the beneficiary is named by the insured and whom he may change at any time before death, a well-founded distinction exists, for there is no vested interest in the beneficiary in the certificate until it becomes fixed by death. Masonic Ben. Ass’n v. Bunch, 109 Mo. 560; Wells v. Mut. Ben. Ass’n, 126 Mo. 630; Hofman v. Grand Lodge, 73 Mo. App. 47; Niblack on Ben. Soc., sec. 212. It is true that neither has the insured member himself an interest in the fund (Masonic Ben. Ass’n v. Bunch, supra; Keener v. Ins. Co., 38 Mo. App. 543), still he is the opposite party in the contract. Pie has made it from the motive of duty or affection and he is interested in its being upheld. His declarations of things tending against the contract would likely not have been made if not true. They should be received in evidence. They should be regarded as in instances of contract where the representative of the declarant is a party to the action. And so it has been decided. Thomas v. Grand Lodge, 12 Wash. 500; Steinhausen v. Mutual Ass’n, 13 N. Y. Supp. 36; Niblack on Ben. Ass’ns, secs. 212, 325.
Defendant seeks to avoid the effect of the deceased’s misrepresentation and his subsequent conduct by a plea of’ waiver. This consists in the trial aforesaid by the local lodge wherein defendant was charged with using intoxicants and becoming drunk just pre[527]*527vieras to Ms death, and wherein all action was deferred, as has been stated. We are satisfied that such action on the part of the company was a wMver of a forfeiture on account of the matter of use of intoxicants after he took out the policy. But it was no waiver of the fact (if it be a fact) that he had been drunk before his application. A waiver presupposes knowledge of the thing to be waived, and there is no evidence that defendant had any knowledge of Ms being drunk before the application. And so the trial aforesaid discloses that no consideration was given to anything except a violation of his duties after becoming a member and shortly prior to his death. We can not discover any good reason for connecting the two violations in such way as to make a waiver of one affect the other. We discover nothing bearing on the question in the authorities cited by plaintiff.
But plaintiff further insists that if what we have just stated was not a waiver, that the subsequent furnishing blank proofs of loss to plaintiffs and the fact that they went to trouble and expense in making them, constituted a waiver, not only on the question of intoxication but also that of hemorrhage. We think not. There is nothing to show that defendant knew a,t the time the blank proofs were furnished that there had been a misrepresentation as to either of these things having occurred prior to the date of the application.
Deceased at time of application had two brothers alive and one dead. Defendant offered to prove this and that the dead brother died of diabetes. The court rejected this offer. The following questions,' in the following form, and answers thereto, are found in the application made by deceased:
[528]*528
[529]*529This form was preceded by the request to “give full answers to following questions as to family history,” and following the form there were warranties that the answers were “full, complete and literally true.” It will be noticed that there was no direct answer as to whether any brother was dead. But he did answer that he had two brothers, giving their ages and their condition of health. But as the question whether any brother was dead was not asked, in terms, and as the defendant accepted the answers in that form, and as the law will endeavor to avoid a forfeiture, we conclude that there was no warranty on this head. Phoenix Ins. Co. v. Radein, 120 U. S. 183; Jersey Ins. Co. v. Carson, 44 N. J. L. 210.
From what was said by counsel at the trial we do not take it that a warranty is claimed; but it is insisted that a fraudulent concealment was made by deceased. A full and complete answer to the questions was required by the application. If the offer of proof turns out to be a matter of fact, it is evident that a fair and candid answer was not given. There was concealment and the parties (as they rightfully may) have made it material (Jeffries v. Ins. Co., 22 Wall. 47; Price v. Ins. Co., 17 Minnesota 497; Campbell v. Ins. Co., 98 Mass. 381, 403). If, therefore, it can be shown (under a proper answer) to have been a fraudulent concealment for the purpose of inducing the defendant to issue the certificate and which it would not have issued had the truth been told, it ought to avoid liability. In so stating we deem a fraudulent concealment of the matters here considered as tantamount to a fraudulent misrepresentation.
As the answer stood at the trial it bore more upon a question of warranty than a fraudulent misrepresentation or concealment and, therefore, the ruling of the court was right.
[530]*530"What we have said could only be available to defendant by an amendment to that part of the answer wherein information was sought as to the family history, setting up what we have just indicated it was necessary to prove.
The judgment is reversed and cause remanded.
All concur.