No. 13,654 | Ind. | Jan 25, 1888
Nettie Yung sued the Continental Life «Insurance Company to recover the amount alleged to be due
The complaint alleges that the death of Christian Yung occurred on the 4th day of August, 1883, and that all of the conditions of the policy had been duly kept and performed on the part of the plaintiff and the assured.
The company defended upon the ground that there had been a breach of the warranties.contained in the application and policy, in that, by his answers to certain questions propounded in the application, the assured had represented, among other things, that he then had no disease of the kidneys, or of the urinary or generative organs, when the truth was, that, before and at the time of making the application, he was afflicted with a disease known as “ Bright’s disease,” which rendered insurance on his life more than ordinarily hazardous. There was a trial and verdict for the plaintiff.
The only controverted question was whether or not the insured was afflicted with Bright’s disease at the time he made and signed his application for insurance. Upon this point the evidence was conflicting. The plaintiff below introduced evidence tending to show that the assured was at that time in robust health and free from disease or ailment, while the insurance company produced a medical witness who testified that a short time prior to the making of the application he had subjected the urine of the assured to a chemical and microscopical examination, and in that manner had found out that he was afflicted with Bright’s disease in a stage so far advanced as to be incurable. There was other evidence supporting the theory of the defence. The plaintiff, on the other hand, produced medical witnesses in rebuttal, who testified that all the symptoms relied on to indicate the presence of Bright’s disease, as testified to by the doctor who made the examination, might be produced by, and result from, other and merely temporary causes, such^as a cold, affecting the organs involved, and the like. Apparently 're
It is contended, however, that the evidence, if there is •any, in support of the finding, is clearly and conclusively •contradicted, and that hence a new trial must be ordered.
That the evidence which tends to support the finding may be contradicted, does not justify this court in ordering a new trial. Where competent evidence appears in the record, which, if believed, necessarily tends to support the finding, unless the evidence relied on is of such a character as that, to believe it, would necessarily involve an absurdity in reason, or an impossibility according to the very nature of things, this court can not say, however much such evidence may be opposed by other testimony, that it is conclusively contradicted.
The impracticability of applying a rule such as that contended for was very clearly demonstrated in Fort Wayne, etc., R. R. Co. v. Husselman, 65 Ind. 73" court="Ind." date_filed="1878-11-15" href="https://app.midpage.ai/document/fort-wayne-jackson--saginaw-r-r-v-husselman-7042873?utm_source=webapp" opinion_id="7042873">65 Ind. 73.
In its sixth instruction, the defendant'asked the court to charge the jury, in substance, that if the certificate of the death of the assured, made by the attending physician and furnished to the company by the plaintiff or her son, contained a statement to the effect that the assured died of
In its fifth instruction to the jury, the court charged to the effect that if the assured had, at the time of making his application, some affection or ailment of some one or more of the oi’gans inquired about in the application, which ailment was of a character so well defined and marked as materially to derange for a time the functions of such organ, such ailment, whether known to the assured or not, would avoid the policy; to which was added “and this would be so with reference to Bright’s disease of the kidneys, if it was such a disease as I have just mentioned.”
So much of the charge as is quoted above is said to be fatally erroneous. In this we do not concur.
The instruction in its general scope is strictly in harmony with the law as announced in Connecticut Mut. Life Ins. Co. v. Union Trust Co., 112 U.S. 250" court="SCOTUS" date_filed="1884-11-17" href="https://app.midpage.ai/document/connecticut-mutual-life-insurance-v-union-trust-co-91204?utm_source=webapp" opinion_id="91204">112 U. S. 250, and other well considered cases, and, in view of the evidence given, the concluding sentence was not objectionable. Cushman v. United States Life Ins. Co., 70 N.Y. 72" court="NY" date_filed="1877-06-05" href="https://app.midpage.ai/document/cushman-v-united-states-life-insurance-3591733?utm_source=webapp" opinion_id="3591733">70 N. Y. 72.
If, at the time the assured made his application for insur
We are of opinion that the company has no just ground of complaint growing out of the giving or refusing of charges.
The fourth interrogatory submitted by the defendant below required the jury to answer a purely hypothetical question, relating to chemical and microscopical tests of the urine,, and the diseases indicated by such tests under certain supposed conditions. After the jury had retired they notified the court of their inability to answer the above interrogatory. Thereupon the court, of its own motion, withdrew it from the jury over the defendant’s objection.
There was manifest impropriety in submitting the interrogatory in question to the jury in the first place. It could only have been answered by men skilled in the sciences to which it pertained, and the application of those sciences to the discovery of disease, and when answered the answer would have been merely evidentiary. It was within the discretion of the court to withdraw it from the jury upon being apprised of its nature, and that the jury were unable to answer it.
Concerning certain questions made upon rulings of the court in respect to the admission of evidence, it is only necessary to say we have considered the questions and find no error.
The judgment is affirmed, with costs.