Defendant, a fraternal insurance company, appeals from a judgment obtained upon its benefit certificate or insurance policy issued on the life of Roland G. Pemberton, payable to plaintiff, his wife, upon his death, the insured having died on December 25, 1953.
The pleas 19, 20 and 21, to which demurrer was sustained, allege that the policy is to be construed by the laws of Ohio as provided in the application for insurance and aver, “that under the law of the State of Ohio the following rule of law applied with respect to applications for insurance made to fraternal benefit societies: ‘When a party in order to effect insurance upon his life, states that the answers and declarations made by him in his application to participate in a benefit fund of a fraternal society and in his medical examination are true, and agrees that they are to be treated as warranties and made a part and parcel of the contract and that if untrue the policy shall be void, then the society is not liable if any of the statements are untrue and the agreement of the parties .removes the question of the materiality from further consideration.’ And defendant further avers that defendant is a fraternal benefit society duly incorporated and existing under the laws of the State of Ohio as a non-profit institution and that the deceased insured made untrue answers in his said application to defendant as aforesaid and that said policy is thereby avoided by reason of said untrue statements.”
The statements in the application alleged to be untrue are set out in the pleas.
The rule for pleading the law of another State is set out in Dawson v. Dawson,
“Generally when a statute is relied upon it should be set out in haec verba, and when a judicial opinion of the sister state is invoked it should be so fully set out in the plea as to inform this court of the point or question decided, but this does not mean that the whole opinion including a transcript of the record should be set out. It is enough if the opinion is sufficiently set out to apprise us of the point involved and how it was decided by the highest court of the sister state.” See also Equitable Life Assur. Soc. v. Brandt,
It will be observed that the pleas here fail to indicate whether or not the law of Ohio relied upon was statutory, and if so, where such statute was found, or whether it was established by judicial precedent of “the highest court of the sister state.” Dawson v. Dawson, supra.
We are further of the opinion that the averment that “under the law of the State of Ohio the following rule applied with respect to applications for insurance made to fraternal benefit societies,” was a conclusion of the pleader and was insufficient as an allegation that the law of Ohio relied on was in force and in effect at the time of the contract in question. Equitable Life Assur. Soc. v. Brandt, supra.
We conclude the laws of Ohio were not sufficiently set out in the pleas and the demurrer thereto was properly sustained.
There being no merit in the assignments of error as to these pleas, the remaining assignments argued collectively in brief will npt be considered. Emergency Aid Life Ass’n v. Gamble,
This aside, the law of a sister state is a fact which must be pleaded as well as proved, Cubbedge, Hazelhurst &
Assignments of error numbers 8 and 9 question the correctness of the trial court’s ruling sustaining demurrer to pleas 5 and 9, as amended, respectively. These pleas were each amended in two respects. The substance of the defense asserted in the pleas is the insured made false answers to question 9 in the application for the policy sued on, as follows :
“This is important answer fully
“9. Have you received medical or surgical advice or treatment within the past five years? Yes.
“If so, give details Bad cold in 1-1-53 for cold lasting 10 days.
“Doctor’s name and address Elbert H. Sanders, 1113 East Lake,” when in truth and in fact he had been treated by Dr. Sanders in February, .1952, and subsequent thereto for a disease of the heart.
Conceding, but not deciding that the ruling on these pleas was erro'r, it was nevertheless harmless error. Evidence on this issue was freely admitted, and defendant had the full benefit of the alleged defense set up in said pleas. Sovereign Camp W. O. W. v. Deese,
The case was submitted to the jury,on count 3, which is in Code form, Code 1940; Title 7, § 223, Form 12, and pleas 1(a), 2(a), 4, 6, 7, 8, 10, 11, 22 and 23.
The plaintiff made out a prima facie - case for recovery on the policy. Booker T. Washington Ins. Co. v. Crocker,
The burden'then, rested upon defendant to reasonably satisfy the jury as to the truth of the averments of one or more of its special pleas. Woodmen of World Life Ins. Soc. v. Phillips,
The defense is based upon the theory that the insured falsely represented in the application for the policy sued on that he was in good health and that he had never been afflicted with any disease of the heart, when in fact he had in February, 1952, and subsequent thereto, been treated for a disease of the heart, which disease materially increased the risk of loss, or that such representations were made with actual intent to deceive. Title 28, § 234, Code 1940.
The plaintiff testified that insured worked regularly 40 hours per week as a foreman, and switchman for the L. & N. Railroad Company; that he appeared to enjoy good health; that he worked around the house;, hauled water for the hogs in a wheelbarrow ; worked in the garden and never complained to her that he had heart trouble.
Plaintiff’s witness, William Ross, testified that he had known insured for about 35 years; that at different times they had' worked on the same crew for the railroad company and many times had worked together for as long as two years; that when Mr. Pemberton came tó his house on the day of his 'death he did not appear to be sick or ill; that .he had never known insured to be, sick or look ill the whole time he had known him; that he worked regularly and did a full day’s work; that he had' never heard Mr. Pemberton complain of having' heart trouble and had never seen him have falling out spells or strokes when working around- him.
The; witness further testified that on' Christmas day of 1953 insured came to his home, and a few minutes after his arrival he slumped.over in his.chair and died within about ten minutes. -
Defendant insists it was due the general affirmative charge because of the statement by the beneficiary as a part of the proof of loss furnished to defendant that the cause of death was “coronary occlusion,” and the following statement in the physician’s death certificate:
“7. Date of first illness: 2-16-52. 8. Nature (Give full particulars) Coronary Heart Disease. 9. Immediate cause of death Coronary occlusion.”
Appellant cites the following from Cotton States Life Insurance Company v. Crozier,
“The physician’s death certificate, filed with defendant as part of the proofs of death, was not evidence for plaintiff, against defendant, of the truth of any of its statements of fact, but only of plaintiff’s compliance with the requirements of the policy in that behalf. 37 Corp.Jur. 560, § 316; Id. 632, 633, §§ 434, 435. The statements in the certificate, however, including the statement that the assured died of heart disease, which had existed for two or three years,’ and for which the physician had treated her during that time, were evidence against plaintiff by way of admissions. 37 Corp. Jur. 632, § 435. And such statements, if unrebutted or unexplained, or unqualified, by other evidence tending to show that they are erroneous or untrue, are held as binding and conclusive on the beneficiary. 37 Corp. Jur. 561, § 316.” (Emphasis supplied.)
Dr. Sanders, the physician who signed the death certificate, testified on the trial that the last time he saw insured was January 17, 1953, which was nearly a year before his death and did not see him after he died. The death certificate recites that no autopsy was performed. The witness stated he did not know what insured died of; that he did not know whether he had been in one or more accidents; that he did not know what changes might have occurred in his physical condition; that he did not know what he had been eating or
We are of the opinion that under this witness’ testimony statements in the death certificate should not be held as binding and conclusive evidence as to the cause of death. In the language of Justice Merrill in Woodmen of World Life Ins. Soc. v. Phillips,
“There are some diseases which are commonly known to be of such serious consequences that the court will declare that they increase the risk of loss, without making a jury question, but it is generally one for the jury.” Sovereign Camp W. O. W. v. Harris,
In Empire Life Ins. Co. v. Gee,
“Possibly any disease of so vital an organ affects the prospect for life; but the materiality of a statement of fact as affecting the risk of loss is ordinarily a question for the jury, and we are scarcely able to affirm, as a matter of judicial knowledge, that every disease of the aorta increases the risk of loss.” See also Heralds of Liberty v. Collins,
We think that the foregoing recital of the salient features of the evidence shows, without discussion, that a jury question was presented upon all the issues of fact indicated and that defendant was not due the general affirmative charge.
After a careful examination of the evidence we cannot affirm that the verdict was contrary to the great weight of the evidence and that the trial court erred in denying the motion for a new trial.
The judgment of the trial court is affirmed.
Affirmed.