Sovereign Camp W. of W. v. Morris

• Court: Supreme Court of Kentucky
• Writing for the Court: Judge McCandless
• Citation: Sovereign Camp W. of W. v. Morris, 212 Ky. 201, 278 S.W. 554 (Ky. 1925)
• Decision Date: 18 December 1925
• Parties: Sovereign Camp, Woodmen of the World v. Morris.

212 Ky. 201

Sovereign Camp, Woodmen of the World v. Morris.

Court of Appeals of Kentucky.

Decided December 18, 1925.

1. Insurance — Issue as to Truth of Answers in Application Held for Jury. — In action on fraternal insurance policy, evidence as to truth of answers in application held, under facts, to raise issue for jury.

2. Insurance — Answers to Questions in Application, Not Being Fraudulent, Void Policy Only when Material to Risk. — Answers to questions for fraternal insurance policy, not being fraudulent under the statutes, are considered as representations, and not as warranties, and void policy only when material to the risk.

3. Appeal and Error — Admitting Incompetent Evidence Held, Under Facts, Prejudicial. — In action on fraternal insurance policy, where truth of answers to questions in application was for jury, admission of incompetent evidence by beneficiary that deceasedad never had any disease of the heart held, under facts, prejudicial.

4. Evidence — Layman Cannot Diagnose Diseases, or Testify as Expert in Reference Thereto. — If within knowledge, a layman may testify as to strength, vigor, and apparent physical condition of another, and as to presence or absence of symptoms indicating disease; but he cannot diagnose diseases, or testify as expert in reference thereto.

Appeal from Trigg Circuit Court.

THOMAS & McKINNEY for appellant.

W.H. HOOKS for appellee.

OPINION OF THE COURT BY JUDGE McCANDLESS.

Reversing.

In a suit in the Trigg circuit court, Mrs. Mallie Morris recovered a judgment of $852.91, against the Sovereign Camp, Woodmen of the World, on a policy of insurance carried by that camp on the life of her deceased husband.

The company appeals and insists the court erred in not giving a peremptory instruction in its favor. (2) In the admission of incompetent evidence. (3) In giving improper instructions. (4) That the verdict is against the evidence.

The policy is in the usual form of fraternal policies, with the ordinary written application attached. In his application which was dated July 7, 1919, the deceased was asked, "Have you now or have you ever had any diseases of the following named organs, or any of the following named diseases or symptoms?" Naming practically every disease known to medical science and to all of which he answered "No." He also stated that he had not been waited upon by a physician within five years prior to the application. In answer to obviously leading questions, but without objection, Dr. Ezell, deceased's practicing physician, testified that he had treated deceased at intervals for eight or nine years before his death for "mitral regurgitation," which is one form of heart trouble, and that he had "dilation of the left ventricle or enlargement of the left ventricle of the heart; that the predisposing cause of his death was old heart lesion;" that he was consulted by deceased in the fall of 1911 for stomach symptoms and that deceased called on him again in 1914 or 1915 for treatment. He admits that he kept no records of these visits prior to April, 1923, and was testifying to dates from memory; he further stated that he had no recollection of telling deceased that he had heart trouble.

Dr. A.D. Cloyd, chief medical director and examiner for defendant, testifies that if he "had known the applicant had been treated by a physician within five years previous to the application, or that he had been treated for indigestion or for any diseases of the heart or blood vessels, that he would not have accepted the application." In detail he says that he "would not have accepted the application if it had stated that applicant had consulted a physician in 1911 and in 1914 or 1915 for stomach trouble and had been found by a physician to have stomach trouble or systolic murmurs of the valvic areas within six or eight years of the date of the application."

On the other hand, plaintiff...