McGinty v. Bhd. of Ry. Trainmen

• Decision Date: 12 June 1917
• Citation: 166 Wis. 83,164 N.W. 249
• Parties: MCGINTY v. BROTHERHOOD OF RAILWAY TRAINMEN.
• Court: Wisconsin Supreme Court

166 Wis. 83

164 N.W. 249

MCGINTY

v.BROTHERHOOD OF RAILWAY TRAINMEN.

Supreme Court of Wisconsin.

June 12, 1917.

Appeal from Circuit Court, Juneau County; James O'Neill, Judge.

Action by Anna McGinty against the Brotherhood of Railway Trainmen. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded for new trial.

This action was brought by the plaintiff, beneficiary and mother of John McGinty, on a policy of life insurance issued by defendant. John McGinty died February 25, 1913. His written application for this insurance, together with the report of an examining physician, Dr. J. J. O'Neill, were made in September, 1911. The application contained a provision by which the assured warranted his answers to the questions therein contained to be true, full, and complete, and the basis of the contract of insurance; also that he had consulted Dr. J. J. O'Neill, of Elroy, Wis., his medical adviser during the preceding five years for la grippe; that as to his father he stated in substance that he died at the age of 56, having been 6 months sick, of previous good health, and that the cause of death was injury, and that the father never had had any cancerous or hereditary disease; that he himself had never been afflicted with syphilis, or any disease of the genital or urinary organs.

By the provisions of the contract, the pleadings, and the evidence, the following became the material issues between the parties and were submitted to the jury in a special verdict substantially as follows, and with the answers made by the jury therein, viz.:

(1) Was Michael McGinty, the father of the insured, afflicted with cancer? No.

(2) Had the applicant ever been afflicted with syphilis at the time of making his application? No.

(3) A similar question as to gonorrhea. No.

(4) Was the applicant in good health at the time of making application? Yes.

(5) Was the certificate procured by or through fraud or deceit of applicant? No.

After motions made by each side, judgment was ordered for plaintiff, from which judgment defendant appealed to this court.Bentley, Kelley & Hill, of Baraboo, for appellant.

J. T. Dithmar, of Elroy, for respondent.

ESCHWEILER, J. (after stating the facts as above).

[1] At the beginning of the term of court, and a week before the trial, when the action had been pending some nine months, and had been once continued for a term, defendant moved for leave to amend the answer by inserting the following:

“That the application so made contained the following questions: ‘Have you been afflicted with any of the following complaints and diseases: Asthma, bronchitis, pneumonia, pleurisy, consumption, spitting of blood, habitual coughing, * * * or any disease of the throat, heart or lungs; cancer or tumor, scrofula, discharge from the ear, ulcers or open sores, chronic rheumatism, varicose veins?’--and that to each of said questions the applicant answered, ‘No.’ ‘Have you ever had any illness or injury other than above stated?’ Answer: ‘No.’ That said answers so made in the said application were false, and known by the said applicant so to be, formed a material part of the said application and representation upon which the said benefit certificate was issued, and were falsely made by said applicant for the purpose of obtaining admission to the said order and receiving the said benefit certificate, and relied upon by said defendant association in the issuance of said certificate.”

The motion was renewed on the trial, and each time denied by the court, of which rulings defendant now complains. Such a denial was well within the discretion resting in the trial court, and will not be disturbed. The application was late; it was too profuse, for it could hardly be expected that, after certain specific diseases had been relied upon as defenses, the door should be opened for a possible examination as to all ailments from asthma to varicose veins, without at least some definite showing upon which particular item reliance would be placed. French v. Fidelity & Cas. Co., 135 Wis. 259, 115 N. W. 869, 17 L. R. A. (N. S.) 1011.

The plaintiff beneficiary was called as an adverse witness by defendant, and testified that her son John died from consumption after an illness of eight months; that she accompanied him to Dr. O'Neill's office in February, 1911, preceding his application for insurance, and heard the doctor say that John then had the grippe and sore throat; that she did not then tell Dr. O'Neill that John had a bad disorder, and that his privates were swollen, and that she had applied poultices; that she never gave him treatments herself for any disease he had, except for the grippe; that she took him to La Crosse in October, 1912, where he was operated upon, but that she did not know the nature of such operation; that she did not know that he had contracted a disease from bad women; that she did not say to one Littlejohn, a member of a subordinate lodge of defendant who called on him in the last illness, anything about John's condition being due to his having led a fast life, or say anything of a similar nature to Miss Travanick, the nurse in attendance upon him. She also testified, with reference to her husband, John's father, that he died in September, 1910, from an injury received from being struck by a piece of wood in January, 1910; that Dr. Vogel treated her husband; that she saw herself that her husband had a pimple on his gum; that his face swelled thereafter; that they changed physicians, and then had the same Dr. O'Neill; that the sore was opened, and she herself opened it with a match at times; that she did not tell Dr. O'Neill, who made out the death certificate, that she didn't want him to put in the certificate that the cause of her husband's death was cancer, and that the doctor said he would put in the statement, as it appeared, viz. that the cause was “injury to the head”; that her husband told Dr. O'Neill that he (the husband) did not have cancer and that she herself did not say to her husband, “It is cancer, and members of your [her husband's] family had died from cancer.”

Mr. Littlejohn, called as a witness, was not permitted to testify as to whether the plaintiff made the statements to him which she had specifically denied making. Miss Travanick, the nurse, was not permitted to testify as to whether plaintiff made to her the statements about her son's condition which she had denied making, on the ground that statements of a beneficiary, made shortly before death of insured, are not admissible against her. She did testify that there had been an operation on John, and both testicles removed, and that John died in convulsions.

Dr. O'Neill, called by defendant, testified in effect and in contradiction of his own certificate, attached to John's application for insurance, that he (the doctor) made no physical or urinal examination. It appeared that he treated John as a patient in 1911 until July, but that he was not such patient in September, at the time of making the application. He was then asked if he had treated John for the grippe (referring to the statement in the application), but was not permitted to answer. He was further asked as to whether plaintiff had made the statements to him about her son and her husband, concerning which she had been asked and denied making, but was not permitted to testify on these points.

Two important questions were to be determined in this case: First, was deceased in good health at the time of making the application in September, 1911? And this depends largely upon the question as to whether or not at that time he had, or had had, syphilis or some kindred disease. Second, whether Michael McGinty, the father of insured, died of cancer? The plaintiff offered in evidence the policy of insurance, together with the application for the same made by deceased, and the certificate of Dr. O'Neill, the medical examiner, as part of her case, over defendant's objection, and...