Wall v. Royal Society of Good Fellows ( 1899 )

Opinion by

Mr. Justice McCollum,

The plaintiff has a right to the money mentioned, in the certificate provided the answers of her son, Edward Wall, to the questions addressed-to him in connection with his application for insurance are true answers. Prima facie, the answers are correct, and the burden of showing their falsity rests on the defendant company. The principal questions to which it is alleged false answers are made appear in the first, second, third, fourth and fifth assignments. The question addressed to the applicant in the first is as follows: “ When last attended by a physician, and for what cause ? ” and the answer to it is, “ One year ago.” The question addressed to him in the other assignments is, “ Have any or either of your parents, brothers, sisters, grandparents, uncles, aunts or cousins been afflicted with consumption or with pulmonary or any hereditary desease?” and the answer to it is, “No.” The answer to the question contained in the first assignment is characterized by the company as false, and the testimony of Dr. L. C. Wiggins is relied on to sustain the accusation. The answer to the question included in the ' other assignments is declared by the company to be untrue, and the testimony relied on to support the declaration is that of Dr. J. A. Miller, Dr. J. B. Black and Dr. J. L. Penny. The testimony of Dr. Wiggins is that he attended Edmund Wall professionally several times during the year preceding his application for insurance, and the testimony of Dr. Black is that Johanna Hickey, an aunt of Edmund Wall, died of consumption in December, 1891. Dr. Miller testified in substance that he was called in 1892 to examine Thomas Hickey and Mary Hickey, cousins of Edmund Wall, and upon his examination of them he was of the opinion that they had consumption, but he did not express this opinion to them or any one else. His call was brief and not repeated.

It must be conceded that the testimony of Wiggins, Miller and Black has a tendency to decredit the answers to the questions contained in the five assignments. But there is nothing in the testimony of Penny which decredits them. On the contrary, his testimony has a decided tendency to maintain their integrity. He was called by the plaintiff in rebuttal, and it is a perversion of his testimony to attribute to it the effect claimed for it in the fifth assignment.

In addition to the three physicians who testified in behalf of the company as above stated, we note that W. R. Spooner, the company’s premier, testified that he had interviews with the plaintiff in which she made admissions in accordance with the contention of the company, and fatal to her demand upon it. He conceded, however, that her husband was present at and participated in these interviews. In this connection it is proper to state that Spooner’s testimony respecting the alleged admissions of the plaintiff is directly opposed to the testimony of her husband in rebuttal.

The testimony of the four witnesses called to sustain the company’s contention is contradicted by the testimony of the sixteen witnesses called by the plaintiff in answer to it. Four of these witnesses are reputable physicians, qualified to testify intelligently and without prejudice respecting the matters to which their attention was called. Two of them examined Edmund Wall in 1892 with reference to an application for insurance, and the conclusion they reached was that he was then in good health and a good risk. The examinations were made on June 4 and November 14. The testimony of the remaining twelve witnesses in rebuttal, together with that of the four physicians referred to meets every phase of the company’s contention, and constitutes, if credited, a complete answer to it.

All the questions in the case are questions of fact and determinable by a jury upon the evidence. The questions and the evidence were fairly and clearly presented to the jury by the learned court below, and we discover no error in the instructions relating to either. W e therefore overrule all the assignments of error.

Judgment affirmed.