Fraternal Aid Union v. High

• Citation: 201 S.W. 824,132 Ark. 588
• Decision Date: 25 February 1918
• Docket Number: 184
• Parties: FRATERNAL AID UNION v. HIGH
• Court: Arkansas Supreme Court

201 S.W. 824

132 Ark. 588

FRATERNAL AID UNION v. HIGH

No. 184

Supreme Court of Arkansas

February 25, 1918

Appeal from Sebastian Circuit Court, Fort Smith District; Paul Little, Judge; affirmed.

Judgment affirmed.

Hill Fitzhugh & Brizzolara, for appellant.

J. A Gallaher, for appellee.

OPINION

SMITH J.

This is an action instituted by Emma High to recover as beneficiary on a fraternal benefit policy held by her husband, L. M. High, in the Fraternal Aid Union. The sole questions presented are the breach of certain warranties made by High to procure the insurance, and it is earnestly insisted that High was afflicted with syphilis at the time of his application, and that he falsely represented that he had not consulted with any physician within five years, whereas, in truth and in fact he had, within that time and shortly before the issuance of the policy, taken treatment for that disease. It is also insisted, as ground for the reversal of the judgment, that High had falsely warranted that no change of climate or location had been sought or advised for the benefit of his. health, when, in fact, he had gone to Hot Springs at the direction of his physician for treatment for syphilis.

The policy was issued on November 1, 1916, and High died on December 2, 1916, after having paid only one assessment. It is said that, if syphilis contributed to his death, he must have been afflicted with it at the time of the issuance of the policy, and physicians testify that this must have been true as a scientific fact, and the truth of that statement is not challenged.

A Doctor Hampson testified that he was a specialist in genito-urinary diseases, and had treated High for a period of a month or two for syphilis, and that in April, 1916, he had sent him to Hot Springs for further treatment for that disease, and he also testified that High had, himself, told him that he had been afflicted with syphilis for six or eight years. A Doctor Morrisey testified that the immediate cause of High's death was a form of meningitis, which was brought on by a tumor of the brain which was produced by syphilis. That there was an enlargement of the glands, which was an evidence of syphilis, and that he examined High for symptoms of other diseases which could have produced his condition and found no indication of any other disease.

It is argued that under this testimony the question of the breach of warranty should not have been submitted to the jury, as no other reasonable conclusion could be drawn from the testimony. It is well understood, however, that we do not pass upon questions of mere probability, and that the verdict of the jury is conclusive upon disputed questions of fact where any real dispute or controversy exists and that it is only when all reasonable minds must reach the same conclusion that we will say the testimony is so undisputed that no question of fact is presented for the...