KNIGHTS OF MACCABEES OF THE WORLD v. HUNTER, 132 S.W. 116

GAINES, C. J. This was a suit by Jessie L. Hunter to recover as beneficiary the sum of $2,000 upon a certificate for the sum of $3,000, issued to her husband in her lifetime, in which she was named as beneficiary. The certificate was originally for $1,000, which, upon a new application, was raised to $3,000. There seemed to have been no controversy as to the $1,000 originally promised, which was paid to and accepted- by Mrs. Hunter with the understanding that it was not to prejudice her rights to claim the additional $2,000.

It was stipulated in the certificate, and in the by-laws of the association, that the answers of the applicant for the certificate were warranted to be true and that in the event they were not true, that the certificate should be avoided.

To questions propounded to him during his examination for the certificate he answered: (1) “That he had never changed his residence on account of his health.” (2) “That he had not been afflicted with cough (habitual).” (3) “That he had not been afflicted with consumption.” (4) “That he had not been afflicted with a disease of the lungs.” (5) “That he had not been afflicted with ulcers or open sores.” (6) “That he had never consulted a physician but one time during the ten years previous to the date of his application, which was October 4, 1905.” (7) “That he had been afflicted with piles but had fully recovered.” (8) “That he had never had any ailment or injury other than piles, prior to October 4, 1905.” The case was submitted upon special issues, and the defendant ashed the court to charge the jury to find an affirmative answer to each of the issues so submitted,' except to No. 7.

This the court declined to do and the jury found each of the issues so sub-, mitted in the negative. We are of the opinion that the charge should have been given. Dr. Neel, who treated Hunter at Bonham in 1903 or 1904, says he had tuberculosis of the bowels and lungs, and testified that he advised him to change his residence, that it would likely prolong his life and that he had a better chance to get well from the change. Thomas A. Lovelace, with whom he hoarded, testified that he said h@ was leaving Bonham on account of his health. Tar-pley deposed that he left Bonham for the ‘benefit of his health. Mrs.

Lovelace testified that he went West in the summer of 1904, that he said he had business out there, and that the doctor had said he thought he had tuberculosis and he thought if he did have it he could live longer out there. This testimony, instead of being in conflict with that of Lovelace and Tarpley, is confirmatory of it, and leaves no doubt that he removed from Bonham on account of his health.

(2) As to the case of an habitual cough the evidence is not so clear. But Dr. Neel testified to his having a cough when he treated him. He must have been sick three or four weeks; and it seems that the presumption from Neel’s testimony is that the cough was a symptom of all his sickness. (3 and 4) As to consumption and disease of the lungs, that question depends upon the opinion of the physician. But the physician gives his opinion without hesitation or faltering and gives the symptoms from which he deduced his conclusion.

(5) As to ulcers or open sores the jury answered: “We find that he had an ulcer of the rectum.” This probably does not show a false answer, because the question is as to ulcers or sores, and the jury found only one.

(6) Was Hunter treated by a physician more than one time for 10 years previous to October 4, 1905? Dr. Neel testified that he treated Hunter in the fall of 1903 and the spring of 1904. And Dr. MaGee stated that he was called upon sometimes, but that he did not treat him except when he had spells with his throat and bowels. But can the statement of the physician who assisted at the examination for the certificate be deemed testimony for any purpose in the case, when not sworn to upon the trial of the cause?

(7) As to piles he represented that he had that disease, but had fully recovered.

(8) He represented that he had not had any ailment or injury other than piles prior to October 4, 1905. We have seen from previous answers that he had had consumption of the bowels and lungs. It also appears that he became overheated fighting a fire that threatened to burn the building in which he was doing business. It is obvious that in more than one of the issues submitted the jury should have been instructed to find an affirmative answer.

It is also assigned as error that the court should have rendered judgment for the defendant upon the finding of the jury to the fifth special issue, which is as follows: “Did Claude Dawson Hunter, at any time prior to October 4, 1905, change his residence on account of his health?” To which they an-' swered, “No.” We have previously set out the testimony which in our opinion shows that this answer was false. This avoided the certificate, and the court should have so ruled. We fail to see any good reason for holding that the avoidance of the certificate had been waived.

That the failure of the counsel for the company to surrender the certificate to the plaintiff was not such waiver, we think too clear for argument. The bylaws had provided that the certificate should, he kept by the association. Besides, the counsel for the plaintiff were given the right to inspect the certificate at any time; and it is not apparent to us that they were embarrassed in the assertion of any right, or that they were compelled to abandon any right by reason of the certificate not having been surrendered completely to them.

The second ground for claiming a waiver is that the claim was presented to the committee on claims and was by them rejected. They referred the claim to the hoard of trustees who rejected it without a hearing. It may be that such was the practice of the order in passing upon contested claims, to give notice that the claim is disapproved and then to await the action of claimant in adducing before the board of trustees additional proof. At all events, the plaintiff seems so to have considered it, for she brought suit on the claim in less than 90 days, as is asserted in the brief of plaintiff in error.

We fail to see that she was in any manner prejudiced by the action of the order. We therefore think that the judgment should be reversed and here rendered for the plaintiff in error.