
    KNIGHTS OF MACCABEES OF THE WORLD v. HUNTER.
    
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 16, 1909.)
    1. Insurance (§ 723)—Life Insurance— Warranties—Y iouation.
    A finding that insured “had ulcer of the rectum” was not necessarily inconsistent with his answer to a question in his application for a benefit certificate as to whether he had ever had piles, by stating he had, and gave the details of the attack, including its date, duration, and results, and stating that he had had an operation therefor.
    [Ed. Note.—For other cases, see Insurance, Dee. Dig. § 723.]
    2. Insurance (§ 819)—Life Insurance-Actions—Sufficiency of Evidence.
    Evidence, in an action ón a mutual benefit .certificate, held to sustain a finding that insured was not affected with lung disease -or tuberculosis, and had not changed his residence for his health, when he signed the application.
    [Ed. Note. — Eor other cases, see Insurance, Dec. Dig. § 819.]
    3. Appeal and Error (§ 1003)— Findings— ■ CONCLUSIVENESS.
    If the evidence is legally sufficient to support a finding, it is immaterial that it is against the weight of the evidence.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. § 1003.] c
    Appeal from District Court, Taylor County; J. H. Calhoun, Judge.
    Action by Jessie L. Hunter against the Knights of the Maccabees of the World. Erorn a judgment (132 S. W. 116) for plaintiff, defendant appeals.
    Affirmed.
    J. E. Yantis and Cunningham & Oliver, for appellant. Wagstaff & Davidson, for ap-pellee.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
       Reversed and rendered for appellant by Supreme Court upon writ of error.
    
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   SPEER, J.

Appellee, as beneficiary, recovered judgment against appellant, a fraternal benefit association, in the sum of $3,000, $1,000 of which the association admitted to be due, but $2,000 of which, representing an increase in the amount of the benefit certificate, it disputed, upon the ground of certain false statements in the deceased member’s application, which statements -constituted warranties. They are thus summed up in appellant’s brief: “(1) He represented that he had never changed his residence on account of his health. (2) He represented that he had not been afflicted with cough (habitual). (3) He represented that he had not been afflicted with consumption. (4) He represented that he had not been afflicted with a disease of the lungs. (5) He represented that he had not been afflicted with ulcers or open sores. (6) He represented that he had never consulted a physician but one time during the 10 years previous to the date of his application, which' was October 4, 1905. (7) He represented that he had been afflicted with piles, but had fully recovered. (8) He represented that he had never had any ailment or injury, other than piles, prior to October 4, 1905.” The truth of each of these matters was contested by appellant and submitted to the jury on special issues; the jury answering each of them favorably to appellee, except the fifth, to which they answered “that he had an ulcer of the rectum.” The certificate sued on contained the stipulation that it was “issued because of application for membership and medical examination furnished by the member in writing, signed by him, and warranted to be absolutely true in every particular as written.” It is undisputed that appellee’s deceased husband made the representations above enumerated.

It is first insisted by appellant that a summary instruction should have been given for it; or, in other words, the jury should have been instructed to answer each of the special issues in favor of the defendant. But we have concluded that the real question under the facts arises upon a subsequent assignment, calling in question the sufficiency of the evidence to support the jury’s findings upon the issues submitted, and the matter will be' discussed under that assignment.

Appellant next contends that the trial court erred in rendering judgment against it upon the verdict of the jury, seeing that the jury answered the fifth special interrogatory in its favor; that is, “that he had an ulcer of the rectum.” In Mutual Life Ins. Co. of New York v. Crenshaw, 116 S. W. 375, the applicant was asked the following question, “Have you suffered abortions or serious troubles in labor?’ which she answered in the negative. The testimony showed that about 30 days before the issuance of the policy the applicant had suffered an abortion. The Court of Civil Appeals for the Fourth district held that the answer was literally true, saying; “The question did not call for an answer in reference to a single abortion, and the answer did not come within the terms presented by the question. The applicant, so far as the evidence, shows, had not suffered abortions; hence her answer was true, considering the terms of the question.” If this conclusion be sound, then there is the same reason for holding the answer to be true in the present ease. The inquiry was whether or not applicant had been “afflicted with ulcers or open sores.” He was not asked if he had had an ulcer or open sore.

But, without questioning the conclusion of the court in the case above referred to, we do not rest our decision of the question upon this ground. In the application for the benefit certificate, the applicant was asked whether or not he ever had piles. He answered that he had, and gave the details of the attack, including its date, duration, and results, indicating that he had had an operation for the same. So that it cannot be said that the jury’s finding that deceased had had an ulcer of the rectum is inconsistent with his representations, taken as a whole. It does not necessarily follow from their answer that deceased was afflicted with any ulcer, other than the attack of piles referred to by him.

This brings us to a -determination of the vital question in the case; that is, whether or not the verdict of the jury finds support in the testimony. It is earnestly insisted by appellant that it does not, and we must confess that the weight of the testimony is apparently against it. But with this we are not concerned, if the testimony favorable to it is legally sufficient to support it. The first, third, and fourth issues, as above enumerated, are those upon which appellant must rely for a reversal. Upon these issues, appellee’s testimony was as follows:

Mrs. Thomas A. Lovelace testified: “I was acquainted with Claude Dawson Hunter during his lifetime. He boarded with us about two years or more, and roomed in our house. I knew him well during that period. This was during the year 1903 and 1904. His health was good when he first came to board with us. His health got bad after that, and then got better. He got well before he left our house, and said he was well. He had several spells of illness, but was well several months before he left our house, and said he thought he was all right in health. * * * Mr. Hunter thought he had piles, and would not admit it was tuberculosis. * * * My best recollection is that he left Bonham and went to Western Texas in the summer of 1904. He said he thought he could do better out there. He said he had a business out there.”

Thomas Lovelace also testified that he had heard the deceased say that he was suffering from rectum tumors; that the nature of • his sickness was piles, or rectum trouble.

Accompanying the application of the deceased, and forming a part of the same, was the medical examiner’s report. In that report, Dr. Barnett states that he had known the applicant 23 years, and that there was nothing unfavorable in his general physical conformation; that his pulse rate was 78, and that, after careful inquiry and physical examination, he did not find any evidence of past or present disease of the brain or nervous system, of the respiratory organs, of the stomach or the abdominal organs, of the skin, ears, eyes, or any part of the body, or any evidence of rheumatism or gout; that, in the opinion of the examiner, no former injury or sickness had affected applicant’s constitution unfavorably; and that he did not know of any reason why applicant should not be accepted for life benefit membership.

While, as before stated, appellant’s evidence tended very strongly to show that deceased had changed his residence on account of his health, and had been afflicted with tuberculosis prior to his application for the benefit certificate sued on, and which evidence it is unnecessary to set out, still it cannot be said, in view of the above testimony, that the jury was required to find other than it did. It will be borne in mind that much of the testimony relied upon by appellant to show that deceased had been afflicted with tuberculosis was necessarily expert or opinion evidence. Viewing the testimony in its most favorable light to ap-pellee, as we must, here we have medical opinion pitted against medical opinion. Dr. Neel thinks the applicant had consumption. Dr. Barnett was of the opinion that no former injury or sickness had affected his constitution unfavorably, and failed to discover the presence of this dread malady. The extent of Dr. Neel’s investigation is not shown; ■ that is, whether he made a microscopic examination, or otherwise employed the latest and most approved tests for tubercular germs, and the jury was therefore authorized to find, as they did, that de^ eeased’s answers were true.

In view of our conclusion that the verdict is supported by the testimony, it becomes unnecessary for us to pass upon the ruling of the court in holding that appellant had waived its right to declare a forfeiture of the certificate, because no other judgment than one for appellee could have bqen rendered upon that verdict.

Nor was there error in rendering judgment for appellee, even though the proof did not show that appellant had been supplied with the affidavit of the minister who officiated at the funeral of the deceased. It is not shown, either by the pleading or proof, that the furnishing of such affidavit was a condition precedent to appellee’s recovery. Furthermore, a liberal interpretation of the clause of the by-laws relating to the subject would be that such affidavit was to be supplied only when required by the Supreme Record Keeper of the Supreme Commander, and it is not contended that either of these officials ever made requisition for such proof.

We find no error in the judgment, and it. is affirmed.

, Affirmed. Writ of error granted; reversed and rendered.  