
    No. 26,939.
    Betty V. Ray, Appellee, v. The Ancient Order of United Workmen of Kansas, Appellant.
    
    SYLLABUS BY THE COURT.
    Mutual Benefit Insurance — Application—Misrepresentation—Sufficiency of Evidence. In an action to recover on a beneficiary certificate in a fraternal society, the evidence considered and held sufficient to support the verdict and judgment rendered thereon.
    Appeal from Crawford district court; Daniel H. Woolley, judge.
    Opinion filed January 8, 1927.
    Affirmed.
    
      Edgar Bennett, of Washington, for the appellant.
    
      Guy W. Von Schriltz, C. O. Pingry, P. E. Nulton and G. L. Stevenson, all of Pittsburg, for the appellee.
    Appeal and Error, 4 C. J. p. 858 n. 3. Mutual Benefit Insurance, 29 Cyc. p. 245 n. 49.
   The opinion of the court was delivered by

Hopkins, J.:

The action was one to recover on a beneficiary certificate issued by defendant to plaintiff’s husband. The plaintiff prevailed and defendant appeals.

The facts are briefly these: Plaintiff’s husband applied for membership in the defendant society November 16, 1923, at which time he was examined by the society’s medical examiner, Dr. C. M. Montee, of Pittsburg. The application, together with the medical examiner’s report, was sent to the home office of the society and beneficiary certificate issued thereon November 20, 1923. About the middle of December following deceased contracted influenza and pneumonia and was told that he was suffering from heart trouble. He died March 8,1924, cause of death being given as “endocarditis,” or “organic heart disease.”

The controversy was one of fact. The defendant contends that answers of the deceased to certain questions in his application were not full, true and complete as warranted by him. The questions and answers over which the controversy arises were:

“Q. Has any physician ever given an unfavorable opinion upon your life or health? A. No.
“Q. Have you ever suffered from any ailment or disease of the heart? A. No.”

Substantially and in brief the testimony was as follows:

Doctor Eayne, who attended deceased in his last illness, testified that he examined him in March, 1924, at which time the patient was suffering from heart disease; that he also attended him in December, 1923, and found that he had a bad heart and pneumonia. (Application made and questions answered November 16, 1923.) Doctor Moberg testified that he examined insured for insurance and found a bad heart murmur, but on cross-examination was unable to recall in what year or month this examination was made, but that it was in the summer time because the garage was wide open. Mrs. Ray, wife of the insured, testified that the doors of the garage (operated by the insured) were kept wide open all the time except in case of a severe storm. Doctor Smith testified that he made a physical examination of insured in June, 1922, and found he had heart trouble, for which he treated him for about one year, and in the presence of his wife told him to take care of his heart. The plaintiff testified that she remembered the occasion of Doctor Smith treating her husband in June, 1922, for a very bad ulcer of the stomach; that at that time Doctor Smith made no statement in her presence of her husband having had heart trouble; that she took care of her husband for a year and a half, and that she was always present when Doctor Smith came to the house when her husband was ill; that Doctor Smith had him in the hospital for the flu and pneumonia in January, 1923; that she was present at that time, and Doctor Smith did not say in her presence that he was suffering from any heart trouble; that he treated him in December, 1923, and at that time said he had developed a slight heart murmur because of the flu and would have to stay in bed for a time; that her husband recovered from that spell. There is also testimony to the effect that Doctor Smith and deceased had had considerable trouble over an- automobile repair bill. Doctor Montee, examining physician for the society, testified that at the time he examined insured (November 16,1923) his heart appeared to be all-right; that cases of influenza and pneumonia can develop heart trouble, and that it might develop in three or four days. Doctor Dudley, who made a physical examination of the insured in March, 1923, testified that he found nothing abnormal in his heart; no chronic heart trouble nor any illness or disease of the heart.

Various authorities cited by the parties need not be analyzed. The controversy in our opinion turned on disputed questions of fact which were resolved by the jury in favor of the plaintiff. There was sufficient testimony to sustain the verdict and judgment.

The judgment is affirmed.  