14 N.E.2d 1018 | Ind. | 1938
The appellee brought this action to recover upon a life insurance policy issued upon the life of Dimple Lowanda Alexander in which he was named as beneficiary. The policy was issued without a medical *219 examination, and the insured died within less than two years. The appellant answered, setting up what is alleged to be a material misrepresentation in the application as to the health of the insured. In the application the insured answered that she had never had tuberculosis or any disease of the lungs. It is alleged in the answer that she was afflicted with tuberculosis at the time of the application. There was judgment for the plaintiff.
There is substantial evidence that the insured had tuberculosis of the lungs upon the date of the application and the date of the issuing of the policy, and had been informed of the fact by her doctors. She died of tuberculosis.
The only question presented by the appeal is whether there is a substantial conflict in the evidence upon that subject; whether there is substantial evidence that she did not have tuberculosis of the lungs at the time of the application and the issuing of the policy.
The application for the policy was signed on the 25th day of April, 1933, and the policy was delivered on May 1st of that year. Dr. Conklin, a witness called by the appellee, testified that the insured died on February 3, 1935; that he treated her from September 13, 1933, until her death; that she had pulmonary tuberculosis on September 13, 1933; that his case history of her showed that she had not been well since the winter before, when she had the "so-called flu"; that when he took the history and went over the case, "as sick as she was," it was obvious that she had had tuberculosis for some time previous to September 13, 1933; for how long he could not say; and that she was entirely too sick at that time to say; that his examination on September 13th disclosed that she had been losing flesh over a period of time, and was weak and exhausted and tired easily. Dr. Bittner, called by the defense, testified that he saw the insured, first, on March 15, 1933, and treated her in her home at *220 Paris, Illinois; that on that date she had a temperature of 102, had rattles in her chest, interruption in her breathing, a persistent cough, and coughed up sputum; that he had an analysis made at Springfield, of which he got a report on March 21, 1933, at which time he informed the insured that she had tuberculosis, and gave the report of the analysis from the State Board of Health of Illinois to her family; that he treated her during the period from March 15, 1933, until August, 1933; that she was suffering from tuberculosis the first time he saw her, and on April 25th and on May 1, 1933.
The evidence discloses that the father and mother of the insured, at whose home Dr. Bittner treated her, are living. They were not called as witnesses by either side, and Dr. Bittner's testimony, corroborated as it is by the testimony of Dr. Conklin, is not directly disputed. But the appellee points to the details of Dr. Bittner's testimony to the effect that, at the time of his treatment, she was not in a condition to come to his office, and that she was in bed when he treated her, and that he advised her not to go to Terre Haute because she needed rest and should be in bed, and to the testimony of the appellee, who lived at Terre Haute, Indiana, and at whose home the application for insurance was taken, and the members of his family, that the insured appeared to be in good health at the time of the application, except for a little cold, and their testimony that the insured came to their home at Terre Haute, the first time, in December, 1932, and was there the "bigger" part of January, went back home in February, came back to their home in March, and went between her home and theirs on various occasions until July, and that during the time she was at the Martin home she was not treated by a doctor, but helped with the housework and went about to dances and parties. A son of the appellee, who was engaged to be married to the insured, testified that she was at his *221 father's home during part of the month of March, 1933. The appellee expressed the opinion that Dr. Bittner must have treated her in March, 1934, and not in March, 1933. But this is a mere opinion, since it is clearly disclosed that the Martins could not fix definite dates, and their testimony does not conflict with Dr. Bittner's, since it is conceded that the insured was in her own home in Illinois during part of the month of March, and at other times between that date and July, largely upon weekends. Dr. Bittner fixed definite dates from records, but the Martins did not, and Dr. Conklin's testimony supports Dr. Bittner's as to the treatments in 1933, since Dr. Conklin had the insured in charge during 1934, and testified that she, in his opinion, had had tuberculosis for some time prior to his being called in upon the case in September, 1933, four and a half months after the policy was delivered. Dr. Bittner was shown to be a disinterested witness. As we have pointed out, the parents of the insured, with whom she lived, and who would have known whether he called upon her in March, 1933, were not called by either side.
In Metropolitan Life Insurance Co. v. Wolford (1912),
In Continental Life Insurance Co. v. Yung (1888),
Judgment reversed, with instructions to sustain the appellant's motion for a new trial.