141 Minn. 175 | Minn. | 1918
Two juries have found that plaintiff was entitled to recover upon an insurance certificate issued by defendant, a fraternal beneficiary associa
Evert Petersun, plaintiff's husband, applied for membership and insurance on May 6, 1915. He was accepted and the insurance certificate was delivered to him June 4, 1915. He died from diabetes on February 29,1916. Death having occurred within one year from the date of membership, the amount due the beneficiary was $1,200, instead of $2,000, the face of the certificate. Due proof of death was made, but defendant denied liability, and this action was brought. The defense alleged, and sought to be established, was a breach of the warranty that Petersun was in good health and free from kidney disease at the time he applied for insurance and that he continued so to be until the certificate was delivered to him, the allegation being that “the said Evert Petersun was not then at the time of making such warranty, nor had he been from the date of his medical examination and admission in good health and free from disease continuously, but he, the said Evert Petersun, was then and had been during all that time suffering from a disease of the kidneys known as diabetes, and that as a result of said disease” he died.
No question is made of the warranty. The issue submitted to the jury was whether defendant had maintained the burden of proving the breach alleged. The claim is that the verdict against defendant on this issue is not justified by the evidence and is contrary to law. Mr. Petersun was 36 years old when he applied for membership in defendant. He was operating a creamery in a small village. In the latter part of May, 1915, he consulted a' doctor, the ailment being dryness or irritation of the throat. The physician, Dr. Ruud, testified that Petersun told him that he drank abnormal quantities of water and also voided an excessive amount of urine. Tests of the urine showed the presence of sugar. Doctor Ruud testified he diagnosed the trouble as diabetes, and, on June 3, so informed Mr. Petersun and plaintiff, who was present. Shortly thereafter deceased visited a specialist in Minneapolis who prescribed a diet and rest. Petersun stayed in bed a few days, then went about his business as usual. Samples of urine were tested during the summer. Mrs. Petersun testified that no sugar was found in the urine after June 10; Dr. Ruud says sugar disappeared on June 23, and was never after-wards found, until late in the year. It appears, perhaps with some con
Defendant produced a witness who testified to a conversation with Petersun relative to accepting any insurance after Dr. Ruud had diagnosed his condition as diabetic. On motion by plaintiff the court struck out what the witness said to Petersun as to the advisability of then seeking insurance, ruling that such advice of the witness was immaterial, but permitting the witness to relate everything Petersun said on that subject and also what he told concerning his state of health or indicative of knowledge that it was not good. What the witness advised Petersun to do cannot be material, the only purpose to be legitimately served by relating what the witness said would be to give meaning to what Petersun was expressing, if that meaning was otherwise in doubt or unintelligible. But, if the jury believed the witness, there was no mistaking the import of the statements he testified Petersun made. The chief object of defendant in having the whole conversation, including what the witness said, was to show knowledge on the part of Petersun that he was then ill with diabetes.
There is a contention that the court should have submitted as a separate defense the question of ill health other than diabetes. We think the charge is not ojien to criticism in this respect. There was no evidence of any ill health other than so-called symptoms which, taken together, jiointed to diabetes, according to the claim of defendant’s medical experts. If not indicative of that disease they were not suggestive of any impairment of health worth mentioning. Temjiorary irritation of the throat, a tired feeling for a few days, an occasional presence of sugar in the urine, were not deemed incompatible with what is generally accepted as good health by any one of the medical experts in the case. The presence of great thirst and excessive urine was in dispute. The instruction above quoted was prepared by defendant and given at its request. It is in consonance with the defense pleaded and, we think, as broad as the evidence warrants.
A snapshot picture of Petersun and his two companions at their hunting camp, taken during the November hunt, was received in evidence over defendant’s objection. It was received simply as corroborative of the testimony that the deceased did go out on a hunting expedition. Everyone ajipreciates that a jiicture of that sort does not visualize the state of health of the person “takenit does quite all expected of it when those who know the person well are able to recognize him as the one depicted.
No error was made in the ruling.
The order is affirmed.