Dissenting Opinion.
Comstock, J.This is the second appeal of this cause; the first and second trials in the lower court were upon the same pleadings which are set out in the report of the first appeal. Supreme Lodge, etc., v. Andrews (1903), 31 Ind. App. 422. The complaint avers that Querner, the medical examiner-in-chief, arbitrarily, and without any valid excuse or cause, disapproved the examination, and peremptorily rejected the application of the deceased, because of the advanced age of said Andrews, and for no other reason or excuse. The constitution and by-laws require the applicant to be examined in certain ways to be recommended by the medical examiner and approved by the medical examiner-in-ehief. The evidence shows that the decedent had been examined by the medical examiner, Dr. Silas D. Black, and the examination duly forwarded to the medical examiner-in-chief, recommending the acceptance of the risk by the endowment rank. In the questions and answers the pulse rate was given by said Black as seventy-six when sitting and eighty when standing. The application was disapproved April 2, 1889, by the medical examiner-inehief, for the reason as indorsed thereon: “Excessive pulse rate for age.” His age was sixty-two years. Doctor Querner, the medical examiner-in-chief, and a man fifty-eight years old, who had been medical examiner-in-chief for eight years or more, testified that he made the written indorsement of rejection on the application, and that “at that age [sixty-two years], with the pulse Tate that this man had [seventy-six sitting], and the simple exercise of rising and standing bringing it up to eighty, was indicative to me that there was danger of future Bright’s disease or paraly*5sis.” The witness further testified that the pulse rate should have been, according to tables, about seventy or seventy-two when sitting, and when standing, four or five beats above, but that it should not increase that much on rising, though after walking a little .while it might be the case. The witness had never seen Mr. Andrews, had no personal acquaintance with him, had no feeling upon the subject of his becoming a member of the fourth class, and used his judgment in the case, limiting himself to the questions and answers on the face of the report.
Doctor George McConnell, medical examiner-in-chief of the Supreme Lodge Knights of Pythias for three years, with twelve years’ experience in practicing medicine, upon being shown the application of John A. Andrews, on which the statement is made by the local medical examiner of the pulse rate (seventy-six when sitting and eighty when standing), said that in his opinion the normal pulse rate of a man sixty-two years of age should be seventy-two sitting and seventy-five standing, and that the pulse rate of Mr. Andrews was above the average. Upon the first trial Doctor Gifford testified that he had known the decedent for thirty or forty years, but gave no testimony as to his condition prior to his last sickness. Doctor Black testified from the examination made of the decedent, answering in the plural to his physical and mental condition: “They were good, sound, and healthy.”
Doctor J. D. Sourwine testified that he knew the insured, but had never treated him; that he had the appearance of being a healthy man -for his age.
The other witnesses in behalf of the appellees were non-experts.
Upon the second trial Doctor Black testified that the normal pulse rate of a man sixty-two years of age, sitting and standing, was anywhere from seventy to eighty; that a pulse rate of a man sixty-two years of age, seventy-six sitting and eighty standing indicated good health, and that *6at the time of his application decedent’s health was good. Doctor Gifford testified that he considered a regular pulse rate of seventy-six sitting and eighty standing, of a man sixty-two years of* age, was a fair pulse, and so far as heart trouble would be concerned he would consider that he had a good heart, but could not tell what other troubles might arise from pulsation. Doctor L. S. Hart testified that the normal pulse rate of a man sixty-two years old, in average good health, would be about seventy — anywhere from seventy to seventy-five; it might be about eighty standing; that he could not find anything indicating danger in a pulse rate of seventy-six sitting and eighty standing, in a man sixty-two years of age; that is, in the pulse rate alone, and that judging from such pulse rate alone he would say that the subject was in good health.
Doctor Black, upon being recalled, testified, that the pulse was full and regular, and that the deceased complained of no organic trouble or illness of any character, and that he observed none.
Doctor F. O. Dilley’s testimony was that the pulse rate of a man sixty-two years of age is about seventy to seventy-five sitting, and eighty standing; that a difference of four points in the pulse rates between sitting and standing is about normal, and that such a rate in a man of the decedent’s age would indicate good health.
The complaint charges that the application was rejected solely because of the advanced age of the applicant, arbitrarily'and without a legitimate excuse. A different reason is indorsed upon the application, and is testified to by the medical examiner-in-chief. The substance of his testimony is that the pulse rate reported by the medical examiner indicated danger of paralysis or Bright’s disease, though neither disease was then active, and that, in the discharge of his duty to the order, he rejected the application for that reason. His testimony is corroborated by that of Doctor McConnell, another examiner-in-chief of large ex*7perience. While there is some conflict in the testimony as to the normal pulse rate, there is no' contradiction of the testimony of Doctor Querner as to the indications of the particular diseases named hy him.
It is not for the court to say, in the absence of fraud or mistake, that the medical examiner-in-chief acted arbitrarily because his opinion is not in harmony with that of other reputable physicians, as to the normal pulse rate of a man of certain age. The proof submitted to the examiner-in-chief, and not that at the trial, gives character to the rejection or acceptance of the application. It is the office, under the laws of the order, of the medical examiner-inehief to accept or reject applications upon the facts reported to him upon the prescribed form by the medical examiner. Necessarily he must be guided by his judgment, based upon his experience and knowledge gained from a study of the authorities. The order, whose servant he is, may set aside or disregard his ruling, but the courts cannot, except upon a showing of a mistake in the report of facts upon which he acted, or that he has acted arbitrarily, or with caprice, or that his decision was influenced by dishonest motives. The evidence in this case fails to show any one of these reasons. I therefore dissent from the majority opinion.
The judgment should be reversed.