Cromeens v. Sovereign Camp, W. O. W.

• Decision Date: 29 January 1923
• Docket Number: No. 3219.,3219.
• Citation: 247 S.W. 1033
• Parties: CROMEENS v. SOVEREIGN CAMP, W. O. W.
• Court: Missouri Court of Appeals

247 S.W. 1033

CROMEENS v. SOVEREIGN CAMP, W. O. W.

No. 3219.

Spring field Court of Appeals. Missouri.

January 29, 1923.

Rehearing Denied February 13, 1923.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by Dulcie Cromeens against the Sovereign Camp of the Woodmen of the World. Judgment for plaintiff, and defendant appeals. Affirmed.

N. C. Hawkins, of Caruthersville, for appellant.

Sam J. Corbett, of Caruthersville, for respondent.

BRADLEY, J.

This is the third appeal of this case. Twice we have reversed and remanded for error at the trial. Cromeenes v. Sovereign Camp, W. O. W., 205 Mo. App. 419, 224 S. W. 15; Cromeens v. Sovereign Camp, W. O. W., 208 Mo. App. 11, 233 S. W. 287. All the facts necessary for a statement are found in the prior opinions, and to them we refer in lieu of a statement here. In our second opinion we said that the question in this cause was whether the insured gave false answers to the inquiry in the medical examination relating to gonorrhea, syphilis, and pneumonia, and as to when he consulted or was treated by a physician. There was evidence on both sides of these questions, and such made an issue for the jury. We are not the triers of the facts. The jury was the judge of the weight of the evidence and the credibility of the witnesses. Plaintiff eliminated from her instructions what we ruled was error, and went to the jury on the questions mentioned supra, and the third jury refused to believe the defense.

Defendant complains in its brief proper of the refusal of its instructions Nos. 2 and 7. Instruction No. 2 told the jury that if they found that the insured had had a family physician in 12 years prior to August 17, 1915, plaintiff could not recover. In the medical examination insured was asked to give the name of his family physician, and answered that he had had none for 12 years. The evidence showed that a physician had waited on his wife at childbirth in less than 12 years. We do not think such a circumstance is sufficient to establish that such physician could years afterwards be denominated a family physician.

Instruction No. 7 is as follows:

"The court instructs the jury that if you find and believe from the evidence in this case that J. Roy Cromeens had been treated by or consulted with a physician for any ailment (italics ours) of his own, it any time within five years next prior to the making of the application for the increase in this certificate, August 17, 1915, then you must fine for the defendant."

In the application and medical examination insured was asked, and answered as follows :

"Have you consulted or been attended by a physician for any disease (italics ours) or injury during the past five years? No."

In the instruction the word "ailment" is used, while in the question alleged to have been falsely answered the word "disease" is used. Webster defines "ailment" as:

"Indisposition; morbid affectation of the body; not applied ordinarily to acute diseases."

The same authority defines "disease" as "an alteration in the state of the body or of some of its organs, interrupting or disturbing the performance of the vital functions, and causing or threatening pain or weakness." Webster gives "ailment" as a synonym of "disease," and says that—

"A disease is usually deep-seated and permanent or at least prolonged; a disorder is often slight, partial and temporary."

Looking to the word "indisposition," one of the definitions of "ailment," we find it defined as "a slight disorder or illness." Plaintiff contends that it was proper to refuse this instruction because of the use of the word "ailment"; that this word is too broad, and covers disorders that could not properly be called diseases. We think this is true, and that defendant should not have had the advantage of whatever difference there may be in the field covered by the word "ailment" over that covered by the word "disease." And...