Winn v. Modern Woodmen of America

CAULFIELD, J. (after stating the facts). — I. The defendant contends that “under the record the evidence is indisputable that Winn did make misstatements in his application for membership, and that consequently the court should have directed a verdict for the defendant, and that the jury wholly disregarded the court’s instructions in returning its verdict.” We are unable to agree with the defendant in this contention. The plaintiff had made a prima facie case, and the burden of proving that these statements were false or not wholly true was on the defendant. [Jefferson v. Life Ass’n, 69 Mo. App. 126, 133.] “The plaintiff was entitled to have'the jury determine the credibility of the testimony offered, even though she offered nothing to contradict that offered in behalf of defendant.” [Gannon v. Gas Co., 145 Mo. 502, 516, 517, 46 S. W. 968, 47 S. W. 907, 43 L. R. A. 505.] The wisdom of this rule is especially apparent in a case like this, where the witnesses for the defendant testify concerning alleged confidential treatments of a person whose lips have been sealed by death. But plaintiff need not depend upon the rule quoted. The testimony on her behalf was, in our opinion, sufficient upon a test of even the weight of the evidence to justify the jury in finding that all the statements made by the insured in his application for this insurance were substantially and literally true. II. Defendant complains of the action of the trial court in refusing to admit in evidence a book entry of the alleged static machine treatment of February 11, 1906; the entry being contained on page 92 of Dr. Gaines’ alleged day book. But we find that that entire page had already been offered and read in evidence by the defendant, as shown by the following excerpt from the abstract of Dr. Gaines’ testimony: “I have the book [12] with me containing the original entry showing this treatment. The book which I now show you is our regular day book. I made the second entry, and Miss O’Neill made the first. The record of the treatment just referred to is on page 92. The entry with regard to the treatment of James Thomas Winn by myself is as follows : ‘February 11, Winn J. T. One treatment.’ That entry occurs in the daily account book of Dr. Oonnell and myself. The book was kept in our office eight miles south of Sturgeon. It contains our daily accounts, our visits and treatments. This book contains 123 pages.” Defendant offered and read in evidence page 92 of the book just identified; the same being marked “Exhibit 2A.” Immediately following said excerpt in the abstract is a photographic copy of said page 92. We can discover no error in the refusal of the court to permit page 92, or any entry thereon, to be offered and read in evidence after it had already been offered and read. Such refusal merely avoided useless repetition, and is not to be condemned. [State v. Punshon, 133 Mo. 44, 55, 34 S. W. 25.] III. Defendant contends that the court erred in admitting evidence by way of impeachment that the witness Gaines had been convicted of misdemeanors. This contention is overruled on the authority of State v. Glitz, 171 Mo. 530, 539, 71 S. W. 1027. IY. The defendant next contends that the trial court “erred in refusing to permit Dr. Connell to refresh his recollection as to the dates on which he treated Winn, by his own affidavit, which he testified was copied from the original record of said treatments.” The evidence on behalf of the defendant tended to prove thát Dr. Connell had given the insured two treatments in June, before the application was made for the insurance and that he himself had made entries in Dr. Gaines’ day book showing these treatments. Now, when Dr. Connell was testifying, he examined the affidavit which was pre [13] sented to him, and stated that “the entries therein contained were taken from the day book, which I have just mentioned, and were compared by me at the time the affidavit was prepared.” He was then asked to examine the affidavit and to refresh his memory by it, and state, if he could, the dates of the visits he made to the insured after June 1, 19'06. The plaintiff objected to this procedure on the ground that the paper was not competent to use for the purpose of refreshing the memory of the witness, not being the original entry. But the witness was permitted to state, in effect, that the entries in the day book represented the visits that he had made. He also stated that he had treated the- insured on June 3 and 10, 1906, but said that this testimony was from his memory of the contents of the affidavit which he had read the day before.. We do not feel constrained to reverse. the judgment on account of the court’s action in the respect mentioned. The matter of refreshing a witness’ memory in the manner proposed is of akin to the matter of putting leading questions to one’s own witnesses, and, like it, rests very largely in the discretion of the trial judge, and, if it does not appear he abused his discretion, his action will not call for a reversal of the judgment. It appears that the original entries, of which the affidavit contained mere copies, had been offered and read in evidence prior to the witness’ examination, and the objection made to the affidavit implied that he might use this original to refresh his recollection, and we are not prepared to say that the court’s insistence that the witness use the original, instead of the copy, when both were before the court, was an abuse of the court’s sound discretion. Nor do we feel that the defendant suffered any substantial prejudice by the witness’ failing to refresh his memory. It is true that, by reason of such failure, he did not specifically mention each of the dates in June on which he is said to have treated the insured, but he ac [14] complished the same thing by stating in effect that all of his June treatments were entered in the day book, which, with snch entries, had been offered and read in evidence and were before the jury. ' . Y. The defendant assigns as error the action of the trial court in refusing to give the instruction set forth in our statement of facts without first substituting the word “consulted” for the words “talked with.” The portion in question of the instruction as offered is as follows : “And at that time the said James Thomas Winn talked with said Dr. Williams with regard to the health of said Thomas Winn, and that said Dr. Williams, at that time, gave to the said Winn some calomel tablets, for the use of said Winn as a treatment for any personal ailment,, if any, of said Winn, and that said Williams was then and there a practicing physician.” We confess our inability to discover that the substitution of the word “consulted” for the words “talked with” effected any substantial change in the meaning of this instruction. In the ordinary language of life, in which instructions to juries are most properly couched, the language as used by the defendant in the instruction as offered could be taken to mean nothing else than that the insured “consulted” with the physician. He, a layman, “thlked with” the physician about his health, and at the same time got medical treatment from him. To “consult” means to apply for direction or information; ask the advice of. Now, why should a layman talk with a physician about his health and get medicine from him except it be with a view of obtaining direction, information, or advice as to his health, and, if he did that, he was consulting with him. The layman and the physician are not on terms of equality on the subject of the health of the layman, and, where a talk on that subject is accompanied by the giving of medicine by the physician to the layman, the inference seems to us irresistible that the “talk” was a consultation; at least, unless the attention of the jury [15] was especially called to the refined distinction, we feel sure they wonld not have noticed it. Being unable to discover any substantial difference between the instruction as ashed and the instruction as given, this assignment of error is overruled. The judgment is affirmed. Reynolds, P. J., and Nortoni, J., concur.