157 Mo. App. 1 | Mo. Ct. App. | 1911
(after stating the facts). — I. The defendant contends that “under the record the evidence is indisputable that Winn did make misstatements in his application for membership, and that consequently the court should have directed a verdict for the defendant, and that the jury wholly disregarded the court’s instructions in returning its verdict.” We are unable to agree with the defendant in this contention.
The plaintiff had made a prima facie case, and the burden of proving that these statements were false or not wholly true was on the defendant. [Jefferson v. Life Ass’n, 69 Mo. App. 126, 133.] “The plaintiff was entitled to have'the jury determine the credibility of the testimony offered, even though she offered nothing to contradict that offered in behalf of defendant.” [Gannon v. Gas Co., 145 Mo. 502, 516, 517, 46 S. W. 968, 47 S. W. 907, 43 L. R. A. 505.] The wisdom of this rule is especially apparent in a case like this, where the witnesses for the defendant testify concerning alleged confidential treatments of a person whose lips have been sealed by death. But plaintiff need not depend upon the rule quoted. The testimony on her behalf was, in our opinion, sufficient upon a test of even the weight of the evidence to justify the jury in finding that all the statements made by the insured in his application for this insurance were substantially and literally true.
II. Defendant complains of the action of the trial court in refusing to admit in evidence a book entry of the alleged static machine treatment of February 11, 1906; the entry being contained on page 92 of Dr. Gaines’ alleged day book. But we find that that entire page had already been offered and read in evidence by the defendant, as shown by the following excerpt from the abstract of Dr. Gaines’ testimony: “I have the book
III. Defendant contends that the court erred in admitting evidence by way of impeachment that the witness Gaines had been convicted of misdemeanors. This contention is overruled on the authority of State v. Glitz, 171 Mo. 530, 539, 71 S. W. 1027.
IY. The defendant next contends that the trial court “erred in refusing to permit Dr. Connell to refresh his recollection as to the dates on which he treated Winn, by his own affidavit, which he testified was copied from the original record of said treatments.” The evidence on behalf of the defendant tended to prove thát Dr. Connell had given the insured two treatments in June, before the application was made for the insurance and that he himself had made entries in Dr. Gaines’ day book showing these treatments. Now, when Dr. Connell was testifying, he examined the affidavit which was pre
The matter of refreshing a witness’ memory in the manner proposed is of akin to the matter of putting leading questions to one’s own witnesses, and, like it, rests very largely in the discretion of the trial judge, and, if it does not appear he abused his discretion, his action will not call for a reversal of the judgment. It appears that the original entries, of which the affidavit contained mere copies, had been offered and read in evidence prior to the witness’ examination, and the objection made to the affidavit implied that he might use this original to refresh his recollection, and we are not prepared to say that the court’s insistence that the witness use the original, instead of the copy, when both were before the court, was an abuse of the court’s sound discretion.
Nor do we feel that the defendant suffered any substantial prejudice by the witness’ failing to refresh his memory. It is true that, by reason of such failure, he did not specifically mention each of the dates in June on which he is said to have treated the insured, but he ac
Y. The defendant assigns as error the action of the trial court in refusing to give the instruction set forth in our statement of facts without first substituting the word “consulted” for the words “talked with.” The portion in question of the instruction as offered is as follows : “And at that time the said James Thomas Winn talked with said Dr. Williams with regard to the health of said Thomas Winn, and that said Dr. Williams, at that time, gave to the said Winn some calomel tablets, for the use of said Winn as a treatment for any personal ailment,, if any, of said Winn, and that said Williams was then and there a practicing physician.” We confess our inability to discover that the substitution of the word “consulted” for the words “talked with” effected any substantial change in the meaning of this instruction. In the ordinary language of life, in which instructions to juries are most properly couched, the language as used by the defendant in the instruction as offered could be taken to mean nothing else than that the insured “consulted” with the physician. He, a layman, “thlked with” the physician about his health, and at the same time got medical treatment from him. To “consult” means to apply for direction or information; ask the advice of. Now, why should a layman talk with a physician about his health and get medicine from him except it be with a view of obtaining direction, information, or advice as to his health, and, if he did that, he was consulting with him. The layman and the physician are not on terms of equality on the subject of the health of the layman, and, where a talk on that subject is accompanied by the giving of medicine by the physician to the layman, the inference seems to us irresistible that the “talk” was a consultation; at least, unless the attention of the jury
The judgment is affirmed.