Grand Lodge of Brotherhood of Railroad Trainmen v. Daly

Upon the issues joined in this case the burden of proof rested upon the defendant in the original action, and by its answer it also assumed the burden of proving each fact required by Sec. 3625 Rev. Stat.

After trial and verdict upon issues thus tendered it can not claim exemption under Sec. 4 of act 97 O. L. 421 (Lan. Rev. Stat. 5812; B. 3631-14 Rev. Stat., and inasmuch as this court will not reverse a judgment on the ground that it is against the weight of the evidence unless clearly so, it follows that Sec. 3625 and not 3631-14 Rev. Stat., is the law of the case. All the facts enumerated in Sec. 3625 were clearly proved with reference to the following answers made by the deceased in his application for a benefit certificate: (1) That he had not consulted a physician during the last five years. (2) That he was then in good health. (3) That he had never been afflicted with syphilis. (4) That he had no deceased brother or sister. (5) That he took possibly three drinks of intoxicating liquor a week.

*394The judgment is therefore manifestly against the weight of the evidence.

The statement of a physician to his patient in that relation that he is afflicted with a certain disease is advice within the meaning of See. 5241 Rev. Stat.

The court erred in charging the jury that the certificate and the constitution and by-laws constitute the contract, when the petition of plaintiff, the constitution and the application itself make the latter a part of the contract.

The special instructions requested by the defendant were based upon the rule stated in the case of Connecticut Mut. L. Ins. Co. v. Pyle, 44 Ohio St. 19 [4 N. E. Rep. 465; 58 Am. Rep. 781], which was abrogated by See. 3625 Rev. Stat. John Hancock Life Ins. Co. v. Warren, 59 Ohio St. 45, 353 [51 N. E. Rep. 546].

Many other errors are alleged but we find none that is prejudicial.

Judgment reversed and cause remanded for a new trial.