Asserin v. Modern Brotherhood of America

147 Wis. 520 | Wis. | 1911

WiNSLOw, C. J.

Tbe defendant’s contention is that a verdict for tbe defendant should have been directed, because it was conclusively proven that tbe insured failed to pay tbe December, 1906, dues at any time during that month. One Firm, tbe local secretary of tbe defendant, who collected tbe monthly dues, testified directly that tbe .December dues were not paid during that month, and that Miss Haas made an application in writing for reinstatement February 15, 1901 (which application be produced), and that she was reinstated at that time upon payment of tbe unpaid dues, in reliance upon tbe representation in tbe application that she was then in good health. Finn also produced bis boobs, and tbe entries therein tended to corroborate bis statements with regard to tbe nonpayment of tbe December dues and tbe payment of all arrears of dues in February. It was admitted by tbe plaintiff that tbe insured was ill with consumption in February, 1907, hence it resulted that if in fact tbe insured defaulted in tbe payment of tbe December dues there could be no recovery, because tbe certificate was thereby rendered void by its terms and tbe reinstatement was vitiated by tbe false representation of health. Tbe plaintiff claimed, however, that tbe December dues were in fact paid upon tbe first day of that month, and denied tbe authenticity of tbe alleged application for reinstatement. In support of her contentions she produced a receipt for the December dues in regular form, dated December 1, 1906, and signed by Mr. Finn, likewise a receipt for the January, 1907, dues, dated January 1, 1907, and a receipt for the February, 1907,- dues, dated February 15, 1907, and she testified on examination of the supposed application for reinstatement that the signature thereto did not look like her daughter’s signature. She also produced another witness who was somewhat familiar with the signature of the insured, who testified that the signature to the application did not look like the signature which he had received from her in correspondence. FTo one saw her sign her name to the application, and the defendant’s testimony on the subject was confined to that of an expert in handwriting, who from examination of the signature and comparison thereof with her admittedly genuine signature on the original application testified that in his opinion both signatures were written by the same person.

Were we approaching these questions as triers of the fact we might well find not only that the plaintiff had not proved her case by the preponderance of the evidence, but that the preponderance was clearly on the other side, but we do not approach them in that way. The issues of fact have been tried by the jury, and we cannot reverse the jury’s findings unless there is no evidence to sustain them, or unless the great weight of the evidence is against them, and that weight of evidence is so reinforced by all reasonable probabilities and inferences that it becomes overwhelming. Bannon v. Ins. Co. of N. A. 115 Wis. 250, 91 N. W. 666. We cannot say that either condition exists here.

By the Court. — Judgment affirmed.