Winn v. Modern Woodmen of America

• Decision Date: 02 May 1911
• Citation: 137 S.W. 292,157 Mo. App. 1
• Parties: WINN v. MODERN WOODMEN OF AMERICA.
• Court: Missouri Court of Appeals

137 S.W. 292

157 Mo. App. 1

WINN v. MODERN WOODMEN OF AMERICA.

St. Louis Court of Appeals. Missouri.

May 2, 1911.

1. TRIAL (§ 139) — QUESTION FOR JURY.

Where a plaintiff has made out a prima facie case, and the burden of disproving it is upon defendant, plaintiff is entitled to have his case submitted to the jury, though he offers no evidence to contradict that of the defendant.

2. INSURANCE (§ 817) — ACTIONS ON POLICY — BURDEN OF PROOF.

Where a plaintiff in an insurance case has made out a prima facie case, the burden of proving that such evidence was false was on the defendant.

3. TRIAL (§ 39) — RECEPTION OF EVIDENCE — ADMISSION IN GENERAL.

Where the trial court had already admitted a page of an account book in evidence, it may refuse to allow the same page to be again offered and admitted in evidence; such a refusal only avoiding useless repetition.

4. WITNESSES (§ 345) — CREDIBILITY — CONVICTION OF MISDEMEANORS.

To affect a witness' credibility, it is permissible to show that he has been convicted of a misdemeanor.

5. WITNESSES (§ 254) — APPEAL AND ERROR (§ 971) — REVIEW — DISCRETION OF COURT.

The matter of refreshing a witness' memory rests largely in the discretion of the trial judge, and his action will not call for a reversal unless it was an abuse of discretion.

6. WITNESSES (§ 255) — REFRESHING RECOLLECTION — DISCRETION.

The refusal of a trial judge to allow a physician to refresh his memory from an affidavit made by him as to transactions which were also in his account book was not an abuse of discretion, when both the affidavit and account book were before the court.

7. APPEAL AND ERROR (§ 1048) — REVIEW — HARMLESS ERROR.

Where a physician's day book was in evidence before the jury, and on his examination the court refused to allow him to refresh his memory as to the date of certain treatments, from an ex parte affidavit previously made by him, the dates of which were also in the day book, the action of the court was not prejudicial, though the witness did not tell the exact dates, but accomplished the same thing by stating that his treatments were entered in the day book.

8. INSURANCE (§ 826) — "TALKED WITH" — "CONSULTED" — ACTIONS ON POLICIES — INSTRUCTIONS.

In an action on an insurance policy, the insurer defended on the ground that a warranty in the application that the insured had not consulted a physician for a certain length of time before his application was untrue. An instruction, requested by the defendant, was that if the insured talked with a doctor with regard to his health, and if the doctor gave the insured certain medicine for some ailment, the verdict should be for the defendant. Before giving the instruction the court changed the words "talked with" to "consulted." Held, that this change was not improper, for "consulted," as used in this connection, means the same as "talked with," "consulted" meaning to apply for direction and information, while to "talk with" a physician and get medicine from him amounts to the same thing.

Appeal from Circuit Court, Monroe County; David H. Eby, Judge.

Action by Clara D. Winn against the Modern Woodmen of America. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 138 Mo. App. 701, 119 S. W. 536, and 146 Mo. App. 69, 123 S. W. 59.

Suit by the widow of James Thomas Winn, as beneficiary in a benefit certificate issued to her husband by the defendant, a fraternal beneficiary association, on June 30, 1906. The insured died August 26, 1906. The plaintiff had judgment for the full amount of the certificate and interest, and defendant has appealed. There is no necessity for reciting the evidence in support of the plaintiff's petition. It is sufficient to say that plaintiff's evidence made a prima facie case, and defendant was put to its defenses. Among the defenses one only need be noticed on this appeal, and that is a plea in bar of certain warranties in the application of the deceased for insurance, which defendant alleges turned out to be untrue. It appears that in his application to the defendant for the insurance certain interrogatories were propounded to the insured, which, with his answers to them, were as follows: "Have you, within the last seven years, been treated by or consulted any person, physician or physicians, in regard to personal ailment? Yes. If so, give dates, ailments, duration of attacks, and name and address of each and all persons or physicians consulted or by whom treated? First of the month I was sick a day or two and had Dr. Connell to see me. Sturgeon, Mo. Were you ever intoxicated? Yes. If so, when last? About three years ago. Have you ever had any disease of the following named organs, or any of the following named diseases or symptoms. Dyspepsia? No. Heart? No." The answer of the defendant says the foregoing answers of the deceased were false; i. e., were not full and complete, literally and exactly true as the application which was part of the contract of the insurance warranted they should be. Plaintiff denied this allegation in her reply. The defendant introduced witnesses whose testimony tended to sustain the defense that the answer of the insured that he was last intoxicated about three years before making the application was false; while the plaintiff adduced considerable evidence tending to prove the contrary. To sustain the defense that when the insured answered that he had consulted Dr. Connell the 1st of June, the month in which the application was made, the insured did not tell the whole truth, and that he answered falsely when he said he had never had dyspepsia or disease of the heart, the defendant introduced the testimony of several witnesses. Dr. Williams testified that at a time which he is confident was within seven years prior to June 25, 1906, but does not recollect whether within one, two or three years he had accidentally met the insured at Sturgeon, Mo., either on the street, or in some house, and something being said about the insured being bilious, looked at his tongue, and gave him a few little calomel tablets. This doctor did not practice in Sturgeon, which was seven miles from his office, and made no charge for this "treatment." Dr. J. T. Gaines testified that on February 11 and 13, 1906, he gave the insured static machine treatments for lumbago, with which he said the insured was suffering; that during April and May, 1906, he had treated the insured for heart trouble and indigestion. Dr. Connell testified that prior to June 1, 1906, he had treated the insured for pleurisy, and that between June 1, and June 25, 1906, the latter being the date of the application, he had twice treated the insured for acute indigestion. Drs. Gaines and Connell contradicted the testimony of each other in material respects, and on cross-examination of Dr. Gaines it was developed that in a deposition given before the trial he had made statements contradictory in essential particulars of most of his testimony at the trial.

Defendant also produced several witnesses, some of whom testified that they had severally heard the insured complain of "stomach trouble," "biliousness," "choking and sinking spells," before he made the application for insurance. One said that the insured was not able to work much; another that at one time the insured had fainted. Defendant also introduced in evidence the affidavit of the plaintiff filed with the Knights of the Maccabees in connection with proof of her claim made against that society on the death of the insured. This affidavit contained the following: "(10) Give name and residence of each and every physician who has prescribed for or attended the deceased during the last five years of his life? Dr. W. R. S. Connell. Sturgeon, Mo. Dr. J. T. Gaines. Sturgeon, Mo. Dr. Williams. Riggs, Mo. (11) Give duration of last illness? About two and one-half months. * * * (15) When did you first notice or learn of any signs or symptoms of failing health in deceased? The last spring." It was also shown that an application made by the insured to the Ancient Order of United Workmen on June 26, 1906, the day after he made his application to the defendant, contained the following questions and answers: "Have you been obliged to consult a doctor, or lose any time from your usual occupation, on account of sickness at any time during the last five years? Two weeks, malarial fever. If so, when and for what? Give dates and duration? May 18th — two weeks." Plaintiff gave in evidence the record of several misdemeanor convictions of Dr. Gaines for the purpose of impeaching him. She also established by several witnesses that the witness who...