Grand Lodge of the 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 éach fact required by Section 3625, Revised Statutes..

After trial and verdict upon issues .thus tendered it can not claim exemption under Section 3631-14, Revised Statutes, and inasmuch as this court will not reverse* á judgment on the ground that it is against the weight of the evidence unless clearly so, it follows that Section 3625 and not 363Í-14, Revised Statutes, is the law of the case. All the facts enumerated in this section were clearly proved with reference to the following answers made by the deceased in his application for a benefit certificate:

1st. That he had not consulted-a physician during the last five years.

2d. That he was then in good health.

3d. That he had never been afflicted with syphilis.

4th. That he had no deceased brother or sister.

5th. That he took possibly three drinks of intoxicating liquor a week.

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

The statement of a physician to bis patient in that relation that he is afflicted with a certain disease is advice within the meaning of Section 5241, Revised Statutes.

*466The 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 Insurance Co. v. Pyle, 44 O. S., 19, which was abrogated by Section 3625, Revised Statutes. Life Ins. Co. v. Warren, 59 O. S., 345, at 353.

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

Judgment reversed and cause Remanded for a new trial.