160 Wis. 514 | Wis. | 1915
Tbe first and most important question in tbe case is tbe question whether tbe court rightly changed tbe answer to tbe second question in tbe verdict of tbe jury. This -question is to be considered in tbe light of two principles: (1) that tbe verdict of a jury is not to be set aside except in a case where there is no evidence in its support, or where tbe great weight of tbe evidence is against it and that weight is so reinforced by undoubted physical facts or by all tbe reasonable probabilities and inferences that it becomes overwhelming. Bannon v. Ins. Co. of N. A. 115 Wis. 250, 91 N. W. 666; Peat v. C., M. & St. P. R. Co. 128 Wis. 86, 107 N. W. 355; (2) that- tbe decision of tbe tidal court is not to be set aside unless we are satisfied that tbe decision was clearly wrong. Slam v. L. S. T. & T. R. Co. 152 Wis. 426, 140 N. W. 30.
In tbe present case tbe certificates were based upon 'written applications, copies of which were indorsed upon tbe certificates, and a provision inserted in tbe certificates to tbe effect that such statements, including tbe answers in tbe medical
In the application of Theodore McKnelly, in answer to appropriate questions, he stated that he had not consulted a physician during the past ten years and that he had never had consumption.
In the application of Ida P. McKnelly she stated that no member of her household was affected with consumption or had been so affected during the past ten years.
The defendant contends and the court held that it was proven beyond question that Theodore had consumption at the time the application was made and that he had consulted a physician during the preceding ten years, and hence that both certificates were void. The examination of this question necessitates a brief review of the evidence on the subject.
Theodore McKnelly was forty-five years of age, his wife forty-six, and his son (the plaintiff) about twenty at the time of the making of the application, and there was also a daughter, Qretta, about sixteen years of age. The family then lived at Wellington, Kansas. The father was a car inspector and repairer for the Santa Ee railroad and the son had the same employment. Both contributed to the support
On the subject of the health of Theodore the testimony was briefly as follows: The defendant’s medical examiner,, one H. E. Hyndman, made a confidential report accompanying the application in which he stated that the applicant had a good figure, step elastic, eyes bright, an appearance denoting a strong, robust physical condition, and made the following answers to specific questions: “14. Did you examine the lungs with the clothing removed from the chest? Yes. a. Are they free from all signs of disease, over every portion clear in murmur, and the percussion note normal? Yes.” “27. How do you rate applicant, first class, good, medium, poor, or uninsurable as a risk? Eirst class.” The physician further stated that for the good of the order he recommended that the applicant be accepted. This report was undoubtedly competent evidence as against the company in favor of the plaintiff (McGowan v. Supreme Court I. O. F. 104 Wis. 173, 80 N. W. 603), %nd constitutes all the affirmative
The plaintiff Otto was strangely ignorant as to his father’s physical condition. He protests that he never knew that his father had tuberculosis, but he admits that his father had a little cough as long as he could remember, that during the last summer his father hadn’t been exactly well, wasn’t able to work for quite a while, and that some said it was tuberculosis.
The testimony on the other side is full, certain, and uncon-tradicted. Dr. J. D. Ray testified that some time during the latter part of 1909 or the first part of 1910 Theodore came to consult him as a physician on account of a cough which he had and brought some of his sputum which he (the physician) examined microscopically and found tubercular bacilli therein; that he advised the patient that undoubtedly he had tuberculosis and that he ought to go west, to New Mexico; that Theodore told him that a hospital association at Topeka had given him the same advice and that he had come to the physician to have the advice confirmed; that the Santa Ee road had .offered him a pass and would see that he got work after he got there. The doctor further testified that Theodore then left Wellington and was gone for a time; that he fixed the date of the examination by the fact that it was shortly before he (the witness) left Wellington and went to live at Eort Madison, Iowa, which was in April, 1910.
Dr. Gr. D. Pendell testified that Theodore came to his office in the.fall of 1911 to consult him; that he, Theodore, was unable to do much work; that he gave him a history of his attacks of coughing, and that from the history of the case and a superficial examination which he gave him, his emaci
Dr. Mollie E. Howell testified that she had a conversation with Mr. McKnelly about a week before the murder and be said to her, “I know I am a goner; I am a hopeless consumptive,” and that his physical appearance was very bad.
Dr. William W. Gill, a physician of long experience, testified as an expert to the effect that if a microscopical examination of the sputum discloses tubercular germs their continuance in the system is certain, and further that the presence of these germs in the sputum in 1909 or 1910 was entirely consistent with the statement of the examining physician, Dr. Hyndman; that' taking all the facts certified to by Hyndman the physical conditions disclosed in that certificate could well prevail and the individual still be suffering from tuberculosis; that, without warning of possible tuberculosis by family history or illness of the person examined, an examining physician not making a test of sputum would be warranted in assuming from the examination made in the present case that the individual was in good health.
This is all of the testimony on the subject of the condition of Theodore’s health, and we think it justifies the conclusion of the trial judge.
There was absolutely no evidence in the case to cast the slightest doubt upon the credibility, learning, or fairness of Drs. Ray, Pendell, and Gill. Ray and Pendell testified to facts concerning which they had certain knowledge and in which they had not the slightest personal interest. To meet this there is nothing but the general statement of thé examining physician, not subject to cross-examination, which may all be true and yet the tubercular condition be present as testified to by Drs. Ray and Pendell. The statement is in effect mere negative evidence of fairly persuasive collateral facts which, in the absence of any other evidence, would sustain an infer-
So far as the statement made by Theodore in his application, to the effect that he had not consulted a physician in ten years, is concerned, there is absolutely no evidence to controvert the testimony of Dr. Ray, before referred to; therefore this statement is conclusively shown to be untrue.
The results flowing from these considerations are not doubtful.
The statements concerning the health of Theodore contained in the applications were expressly made warranties by the contracts of insurance, and if untrue avoided those contracts unless that result is obviated by some statutory provision. Baumgart v. Modern Woodmen, 85 Wis. 546, 55 N. W. 713; McGowan v. Supreme Court I. O. F. 107 Wis. 462, 83 N. W. 775; Hoover v. Royal Neighbors, 65 Kan. 616, 70 Pac. 595; 1 May, Ins. § 156.
It is said that this principle has been changed by ch. 507, Laws of 1911 (now sec. 4202s, Stats. 1913), which provides that where a medical examiner for an insurance company or association declares an applicant a fit subject for insurance the company shall be estopped from alleging as a defense in an action on the policy that the applicant was not in the required state of health when the policy was issued, except in case of fraud or deceit on the part of the insured. There are two answers at least to this claim: (1) the contract had been made and the rights of the parties fixed before the law was passed, and (2) the contract was not a Wisconsin contract when made and hence is not affected by Wisconsin law so far as contract rights are concerned. It is further claimed, however, that secs. 4200 and 4201, Gen. Stats. Kansas, 1909,
It seems to us very apparent that these statutes apply only to life insurance companies and not to fraternal benefit associations. The statutes of Kansas like those of most other states draw very clear distinctions between the two classes of companies and subject them to very different laws. The laws governing fraternal beneficiary societies are found in the Kansas General Statutes of 1909 beginning with sec. 4303 and ending with sec. 4318, and form art. 11 of ch. 55, being the general chapter on insurance. The sections in question, however, are found in art. 4 of the chapter entitled “Relating to Life Insurance Companies.” The word “policy” is exclusively used in the last named article and the word “certificate” in the first named.
The provisions governing fraternal beneficiary societies (now art. 11 above nanfed) were first passed as ch. 23, Laws of 1898, and contained the following provision, which still exists as a part of sec. 4303: “Such association shall be governed by this act, and shall be exempt from the provisions of other insurance laws of this state, and no law hereafter passed shall apply to them unless they be expressly designated therein.” Now, while one legislature cannot control its successors as to the manner in which they shall legislate,
This is the conclusion reached in construing very similar statutory provisions in Missouri. McDermott v. Modern Woodmen 97 Mo. App. 636, 71 S. W. 833.
By the Court. — Judgment affirmed.