The majority opinion in this case is contradictory to the evidence.
The two errors to which I wish to call your attention are:
First, the admission of incompetent testimony over the objection and exception of the defendant. That was the testimony of the witness John E. McCain, wherein he was permitted to testify as to a statement made to him by one Bornheim, who had been soliciting agent of the policy on which the plaintiff based his suit. He testified that Bornheim, who was not a doctor, told him that, as far as he knew, Mrs. Baxley was in good health. This is rank hearsay, and there was no justification on the part of the trial court for admitting such testimony, which would influence the jury in its verdict. *Page 536
The second and principal error in this case was the court's permitting the case to go to the jury in the face of the evidence that the plaintiff's wife was not in good health on June 17, 1946, the date of the delivery of the insurance policy. The only testimony, other than expert testimony, as to the condition of Mrs. Baxley's health, was that of John E. McCain, who was testifying entirely from hearsay, as he was making a routine investigation as a representative of a credit company, and the testimony of H.A. Darrough, who had been an employee of the plaintiff in the taxicab business. These men were not experts in any way, and could not know about the real condition of Mrs. Baxley's health.
The case of National Life Accident Ins. Co. v. Whitlock,198 Okla. 561, 180 P.2d 647, is very similar to the one at bar. There the insured had tuberculosis at the time of the delivery of the policy, and it was so proven at the trial. The case was permitted to go to the jury and a verdict returned for the plaintiff; and in reversing that case, Justice Osborn had this to say about the non-expert testimony:
"It is clear that the testimony of plaintiff that her husband was in good health was a conclusion, or the expression of an opinion, upon a matter as to which she was not qualified to judge. That was a question which could be determined only by skilled medical practitioners or professional men of scientific ability in the diagnosis and treatment of the disease. It could not be determined from the testimony of unskilled witnesses. Inter-Ocean Oil Co. v. Marshall, 166 Okla. 118, 26 P.2d 399; Ft. Smith Western Ry. Co. v. Hutchinson, 71 Okla. 139, 175 P. 922. The general rule is that in cases like the instant case, where the question is whether the insured was in sound health at the time the policy was issued, the liability of the insurer is determined by the actual or real condition of the insured, not by his apparent health, or anyone's belief or opinion as to his health. 37 C.J. 404 § 78; Old Surety Life Ins. Co. v. Hill,189 Okla. 250, 116 P.2d 910; 40 A.L.R. 662, note. Plaintiff, because of her lack of skill or scientific knowledge, could only testify to her opinion as to his apparent health. Plaintiff's inability to testify as to her husband's real condition is shown in the record, for, when asked if her husband did not die from tuberculosis, she stated that she did not know, that the doctor told her he did."
In this case, the non-expert testimony was not sufficient to take this case to the jury, and the only expert testimony they had was that of Dr. R.C. Sullivan, who testified that Mrs. Baxley came to see him in either March or April of 1946, and at that time she was suffering from a stenosis of the cervix, and at that time her cervix was dilated, causing a great deal of pain and flow for two weeks; that he told her, on or about April 10th, that he was going away on a visit, and for her to come back in a couple of months; that she did come back, and on June 11, 1946, her condition had not improved and her cervix was practically closed, and he told her that an operation was imperative and that she should have that operation immediately after the menstrual period, which would be the 25th or 26th of June. He testified, in answer to questioning by the plaintiff's attorney:
"Q. What causes that monthly opening and closing? A. No, the uterus stays open all the time and the scar tissue contracts, it always contracts, it will pull up, the scar tissue, around the hole and will make the hole smaller, that was what happened. Q. Is this condition a serious malady or disease or is it to be considered as a rather common, ordinary situation among women? A. You mean the stenosis of the cervix? Q. The stenosis of the cervix. A. That is not a common, no, sir, it is an unfortunate occurrence following the treatment, that is a treating of the ulceration. Q. Then does this condition have any serious effect upon her health? By Mr. Fischl, of counsel for defendant: We object to that as leading and suggestive. Q. State as to what effect upon the general health of the patient this kind of a condition would *Page 537 have. A. If the cervix is completely closed, all of the drainage is stopped and that patient will complain of pain in the lower abdomen and back and will be weak and feel bad and have a loss of appetite."
How could anyone say this woman was in good health when such a condition existed in her body? This is clearly contrary to the rule laid down in National Aid Life Ins. Co. et al. v. Honea,201 Okla. 14, 202 P.2d 221.
On cross-examination, the doctor further testified that he would not have passed this woman for insurance on the 11th day of June. Part of his testimony is here set out:
"Q. Doctor, I believe if I understand you properly, you, on April 10th, were making an examination for this lady for the purpose of passing on her for insurance; now if you were making such examination, if you had known at that time that she had these complaints of pain in her side and in her back and if you had followed that up and found out she had this complete stenosis of the cervix, you would not have approved her for insurance at that time? A. No, sir, I wouldn't have passed her that way. Q. You would not have considered her a good risk? A. Not after my complete examination. Q. You would say that is true on the 11th of June, is that right? A. That is when I advised her to have the operation."
Although he had testified, in answer to a leading question by counsel for plaintiff, that she was in good health when he examined her in April and June, he testified definitely on cross-examination that she was not in good health on June 11, 1946:
"Q. From your examination and operation, will you state was the lady in good health on the 5th day of June, 1946? A. I can't answer that truthfully, I just don't know, she came to me on the 11th and wasn't feeling good. Q. Was she in good health on the 11th of June? A. No, sir, she wasn't feeling well then. Q. Of course, a person don't come to the doctor — ? A. Unless they are feeling bad."
In his testimony he again reiterated the fact that she was not in good health on June 11, 1946:
"Q. Doctor, is it your testimony that she was not in good health on the 11th day of June, 1946? A. I didn't think she was then because I advised her to go to the hospital, she was feeling bad."
Capitola Baxley was operated on June 26, 1946, and died in August from peritonitis resulting from the operation.
There is no real evidence in this case that this woman was in good health on June 17, 1946, because it is Hornbook principle that testimony elicited by leading question is not entitled to the weight that testimony in answer to a question that is not leading is; and, furthermore, where the plaintiff's witness, on cross-examination, makes statements that contradict his testimony on direct examination, the testimony on cross-examination will prevail. Kessler v. Philadelphia Rapid Transit Co., 107 Pa. Super. 143,163 A. 393.
The court was without jurisdiction in submitting this cause to the jury. On this question, the case of National Aid Life Ins. Co. v. Honea, supra, is in point, for there must be some evidence to submit to the jury; and as was said in the Whitlock case, supra, lay testimony is not proper in a case of this kind.
The defendant was not liable in this case if the plaintiff's deceased wife was not in good health on June 17, 1946. Here was a woman who had been ailing much of her life, and on the 21st day of February, 1946, she had had a major operation for a prolapsed uterus. She had had a previous operation. We find her going to her physician within 30 to 60 days after the last operation suffering from stenosis of the cervix, to relieve which there had to be an amputation of an internal part of the human body. These undisputed facts, combined with the plaintiff's own medical testimony that this woman was not in good health on June 11th, and that hers was a condition *Page 538 that continued right on up to the time of her operation, are too much for me as an appellate judge to agree that the case should be left to the whim of twelve men, who would naturally be favorable to the plaintiff.
I call attention to the case of Rogers v. Fraternal Aid Union, 122 Kan. 9, 251 P. 408, which was somewhat similar to the one here on the facts. There the deceased insured, at the time she made application for the policy, was afflicted with a physical ailment which was probably uterine hemorrhage, "of sufficient gravity to require . . . a surgical curettement", for which she had already engaged a physician (which operation, when performed, disclosed the presence of a mass of dead tissue in the uterus). The court said:
"A woman so afflicted must be held, as a matter of law, to have been of unsound bodily health, and neither the equivocation of witnesses nor the sophistical conclusions of juries can alter that self-evident proposition."
I have no complaint to make of the rule that has been laid down in this court that it is a question of fact for the jury to determine whether or not the applicant was in good health at the time of delivery of the policy, if there is any substantial evidence to submit to the jury; but when there is no evidence to submit to the jury, and the presumption that is raised by the delivery of the policy has been overcome by evidence that the applicant was not in good health at the time of the delivery of the policy, and the plaintiff has the burden of refuting that testimony, certainly, the plaintiff should not be permitted to recover when he has completely failed to do so. The majority opinion would require a case to be submitted to the jury after rigor mortis had set in.
I respectfully dissent.