Ladies of MacCabees of the World v. Kendrick , 1914 Tex. App. LEXIS 84 ( 1914 )

As noted in the court's findings, deceased answered the question numbered 19 in the negative. That question was: "Have you consulted or been attended by any physician during the past 5 years?" It conclusively appeared that at a time, to wit, November 6, 1907, less than 5 years before the date of the application, to wit, November 19, 1910, deceased was attended by a physician, on the occasion of the birth of her youngest child. It is insisted the court, therefore, erred in finding that the answer of the deceased to said question was true. The two questions immediately preceding that one were as follows: (17) "Are you in good health at the present time?" (18) "Have you ever changed or been ordered to change your residence on account of health?" The two questions immediately following it were as follows: (20) "What Was the cause for each such consultation or attendance?" (21) "Have you fully recovered from each illness?" The trial court was of the opinion that, when read in connection with those immediately preceding and those immediately following it, question 19 should be construed as having reference to deceased's consultation with or treatment by a physician for "some illness or ailment" We agree that the question should have been so construed, and therefore that it appeared the answer to it was true, unless childbirth should be classed as an illness or ailment. That it should not be, when natural, as the testimony showed it to have been in the instance in question, we think is clear. Rasicot v. Royal Neighbors of America, 18 Idaho, 100, 108 P. 1053, 29 L.R.A. (N.S.) 433, 138 Am.St.Rep. 180. In the case cited the Supreme Court of Idaho said: "Appellant attempted to show that the answer to question 18 was false, for the reason that the insured had consulted a physician within the period of 7 years immediately preceding her application. On this point there was a sharp conflict in the evidence, except with reference to one visit by a physician who, it is admitted, attended her on April 5, 1899, the date of her last previous confinement. The appellant had notice that the applicant was a married woman, and that she had already borne five children, and that she had been confined on April 5, 1899, which was only 3 years prior to this application. It might have assumed that either a physician or a midwife attended her on this confinement. The attendance, however, of a physician at the time of a normal case of confinement is clearly not a ``consultation' or treatment of a ``personal ailment' of the female confined. Childbirth is a physiological fact which occurs in the regular course of nature, and neither signifies nor entails disease or ailment in the usual and ordinary use of those terms."

Following the birth of one of her children 10 years before she applied for the certificate sued upon, deceased suffered from "childbed fever." The treatment she was then subjected to by physicians included what they called "curetting her womb." The curettment was accomplished by the use of surgical instruments. As a result of the treatment it seems she promptly and entirely recovered from the fever. Appellant insists the curettment deceased's womb was subjected to was a "surgical operation" within the meaning of the question numbered 45, as follows: "Have you ever had a surgical operation performed or received treatment in a hospital, sanitarium, retreat, or any public or private institution for the treatment of physical or mental disease?" and therefore that the court erred in finding that deceased answered truly when she replied to said question in the negative. The finding of the court was based on the fact that the curettment of deceased's womb took place at her home, and not in a hospital, sanitarium, retreat, or other public or private institution for the treatment of disease, as contemplated by the question. If appellant did not intend by the question to limit the inquiry to operations performed in the institutions named, we think deceased was warranted in believing it intended to, and that, construing the question as she had a right to construe it, her answer was true. Construing it that way, had she answered the question in the affirmative, her answer would have been false, for the curettment was not performed in one of the institutions named. If appellant intended to have deceased to state whether she had ever had a surgical operation performed on her person, either in or outside any of the institutions named, it should have seen to it that the questions it propounded to her clearly advised her of its intention, and were not capable of such easy and reasonable misconstruction as the question propounded to her was. It will be noted that the meaning of the question depends entirely on the punctuation thereof. With the addition of a comma after the word "performed," the question means what appellant insists it was intended to mean. Without the comma, as it appears in the record, it means what deceased construed it to mean. In construing the question, we do not think the comma should be supplied in order to convict the deceased of having made a false answer. On the contrary, we think it should be construed as it is written in the record, and as, so written, deceased had a right to construe it. So construing it, the answer she made to it was true.

At the time physicians curetted deceased's womb as above stated, they found that on some former occasion when deceased had given birth to a child, she had suffered a laceration of the perineum. This being true, appellant contends that deceased's answer, in the negative, to the question numbered 42, as follows: "Have you any vaginal discharge or uterine hemorrhage, or disease of the uterus or its appendages, or is any such disease suspected by you?" was false, and that the trial court, therefore, erred when he found that her answer was true. It is sufficient to say, in reply to the contention, that, as found by the court, and as shown by the testimony, the perineum is not an appendage to the uterus.

In connection with each of the findings of the court complained of as above stated, the court further found that, if the answers made by deceased were respectively false, that would not furnish a reason for denying appellee a recovery on the certificate, because it did not appear that same were material to the risk appellant assumed. If we did not agree with the trial court that the answers were true, we would not feel warranted, on the record before us, in saying he erred in his finding that they were immaterial, and therefore did not operate to avoid the certificate. Article 4834, R.S. 1911.

We think the testimony was sufficient to support findings made by the trial court as follows: (1) That deceased was in good health at the time she applied for the certificate. (2) That she had not had an attack of malaria within the 5 years immediately preceding the time she applied for the certificate. (3) That she had not suffered from piles. (4) That, while she had attacks of headache, the attacks were neither frequent nor severe. Therefore we overrule the assignments attacking said findings of the court.

There are other assignments; but they also are believed to be without merit, and are overruled.

There is no error in the judgment, and it is affirmed.