
    Stanley Niezgoda vs. The John Hancock Mutual Life Insurance Co.
    No. 85720.
    November 3, 1931.
   FROST, J.

Heard on defendant’s motion for new trial after verdict for plaintiff in the sum of $261.13.

This case was tried with another case entitled the same and numbered 85,721. It is an action brought to recover upon a policy of insurance taken out by plaintiff’s wife upon her own life. The policy is dated November 13, 1929. It provides that to be effective the insured must be in sound health on the date of the policy. The case was tried on that issue; that is, was the insured in sound health on November 13, 1929?

For plaintiff: Henry E. Crowe.

For defendant: George Hurley, Walter S. Moriarty.

Josephine Niezgoda, the wife of the plaintiff, was thirty-five years of age when she took out two policies of life insurance, each for $250, in The John Hancock Mutual Life Insurance Company. Dr. Savoie testified that he saw her first on November 15 and without making, at that time, a careful examination diagnosed her trouble as bronchitis. On her second visit he advised that she go to the State Sanatorium at Wallum Lake. 'She entered the Sanatorium on December 19, and died on December 24, 1929, from tuberculosis of the lungs.

Counsel for plaintiff has argued that Josephine Niezgoda died of “galloping consumption,” so-called, but there is no positive evidence of this and Dr. Barnes testified that in his opinion this was not so; that Mrs. Niezgoda’s ease was more rapid than the average case but that in his opinion she had suffered from tuberculosis for a period of six months.

In the opinion of the Court the great preponderance of the testimony was to the effect that Mrs. Niezgoda was a victim of tuberculosis of the lungs and was not in sound health when the policies of insurance were taken out.

As the verdict was against the evidence, defendant’s motion for a new trial is granted.  