92 Minn. 251 | Minn. | 1904
The defendant, on March 5, 1901, made and delivered its policy of insurance to Elijah Price, and thereby insured his life in the sum of $2,000, payable to his mother and sister, Margaret Price and Eliza J. Price, after notice and proof of his death. He died December 16, 1901. This action was brought by the administrator of the estate of the mother and by the sister to recover the amount of the policy. The answer of the defendant was to the effect that the insured falsely stated to its medical examiner that he had never been afflicted with any disease of the brain, that he had never suffered from paralysis, nor had he ever had any disease of the urinary organs, and that to the question, “When and for what complaint did you last consult a physician ? Give full particulars.” He falsely answered that he had never been sick.
Evidence was also given on the trial by the plaintiffs tending to show that the answers to the questions in the medical examiner’s report were not made by the insured, but that they were written therein by the defendant’s medical examiner, without asking the insured any questions respecting his health. The jury found a verdict for the plaintiffs for the full amount of the policy, and the defendant appealed from an order denying its motion for judgment notwithstanding the verdict, or for a new trial.
The trial court submitted certain special questions to the jury, which they answered as follows:
1. Did Elijah Price, the insured, inform the medical examiner that he had not had paralysis ? Answer. No.
2. If so, was this answer true? Answer. —■
3. If Elijah Price had paralysis, was he more subject to attack by disease, or more liable to die, than if he had not? Answer. Yes.
4. Did Elijah Price inform the medical examiner that he had never been sick? Answer. No.
5. If so, was this answer true? Answer —
6. If Elijah Price had been sick, and had been treated by different physicians for several months, was he as good a risk as if he had not? Answer. Yes. ■
The defendant’s first assignment of error is that the court erred in-receiving the general verdict, without requiring an answer to all of the special questions. It is perfectly obvious that questions 2 and 5 were not .to be answered unless questions 1 and 4 were answered in the
The defendant’s second and third assignments of error are to the effect that it was error for the court to submit to the jury the question whether the insured informed the medical examiner- that he had not had paralysis, and whether he told the examiner that he had never been sick. Whether it was error or not to submit those questions depends upon the question whether the evidence was sufficient to sustain a finding by the jury that the answers to the questions in the examiner’s report which are alleged in the defendant’s answer to have been untrue were in fact made by the examiner and not by the insured.
The -other assignments of error relate to the refusal of the court to give to the jury certain requested instructions. In so far as such requests were not substantially covered in the general charge, it was error not to give them, if the evidence was not sufficient to sustain a finding by the jury that the answers to the questions which are alleged in the defendant’s answer to have been untrue were not made by the insured.
It follows, then, that the pivotal question in this case is whether the finding of the jury to the effect that such answers were not the answers of the insured is sustained by the evidence. The only witness on this question was the defendant’s medical examiner, and it must be admitted that his evidence was not entirely satisfactory, and, further, that, he substantially admitted on his cross-examination that he testified in some material respects differently on a former trial of the case than he did
Order affirmed.
DOUGLAS, J. (dissenting), I dissent