Citations
- 68 Ohio St. 614
Full opinion text
Burket, C. J..
Upon the trial the defendant, insurance company, had a witness upon the stand with one of the applications for insurance in his hand, and was proceeding to prove that the answers to the several questions therein were made by said Sarah Howie, and that said answers were false, when counsel for plaintiff below objected on tbe ground that said defendant had failed to prove in open court that it bad returned with said policy a complete copy of said application as required by Section 3623, Revised Statutes. Tbe court sustained tbe objection, and excluded both of said applications, to wbicb tbe defendant excepted. Said section 3623 is as follows:
“Every company doing business in tbis state shall return with, and as part of any policy issued by it, to any person taking sucb policy a full and complete copy of each application or other document held by, it wbicb is intended in any manner to affect tbe force, or validity of sucb policy, and any company wbicb neglects so to do shall, so long as it is in default for sucb copy, be estopped from denying tbe truth of any sucb application or other document; and in case sucb company neglect, for thirty days after demand made therefor, to furnish sucb copies, it shall be forever barred from setting up, as a defense to any suit on such policy, any incorrectness or want of truth of sucb application or other document.”
Under tbe provisions of tbis section a failure to return a full and complete copy of tbe application with tbe policy, works an estoppel, so long as tbe company shall be in default, and in case of neglect to furnish sucb copy for thirty days after demand made therefor, sucb neglect shall be a bar to any and all defenses growing out of sucb applications and tbe answers to questions therein contained. Tbe bar here provided for is a permanent estoppel. To make an estoppel or sucb bar available tbe facts constituting tbe same must be plead in all cases where tbe same is practicable.
In tbis case tbe plaintiff below should have plead tbe estoppel in bis reply, but instead of so doing be contented himself with a general denial, and thereby denied the existence of such applications. As the applications in this case in fact existed, he should have admitted that fact in his reply, and avoided their effect by pleading the failure to return copies, and thereby made the estoppel available. The defendant company was not required in its answer to say whether a full and complete copy of the application had been returned with each policy or not. The denial of the existence of the applications might be taken as an argumentative denial of their return with the policies, but pleadings should be direct and not argumentative. As the pleadings stood the court erred in excluding the evidence.
In the court’s charge as to expert testimony the word plaintiff’s was used when the word deceased’s was evidently intended. The intention was so clear that it would seem that the jury could not have been misled thereby. The real meaning of the court in other regards as to expert testimony was not so clear as the above mistake, and is not approved, and should not be followed.
The defendant company introduced Dr. Steiner as a witness in its behalf, and asked him the following question: “Now Doctor, what, if anything, did Mrs. Sarah Howie say to you during the times that she came to you for examination and treatment as to the length of time of her disease?” Objection being made the witness was not allowed to answer. Under Section 5241, Revised Statuses, this ruling was correct. That section provides as follows: “The following persons shall not testify in certain respects: A physician concerning a communication made to him by his patient in that relation, or his advice to his patient.” This question clearly sought to have the physician disclose a communicalion made by his patient to him in the relation as patient, and was therefore incompetent.
Each policy had this condition: “Provided however that no obligation is assumed by this company prior to the date hereof, nor unless on said date the insured is alive and in sound health.”
In view of this condition the defendant company, introduced Dr. Crooks as a witness, and the record discloses the following: “Q. From your treatment of Mrs. Sarah Howie, and the facts you have testified to, what do you say was her state of health on November 12, 1894? A. She was not in sound health on that day. Q. You may state what was her condition on that day. Objected to; objection sustained. Q. What, if anything, did you prescribe for her, if you remember, in November, 1894? Objected to; objection sustained.”
In each instance the defendant company by its counsel excepted, and stated what the answer would be, and the same was in each instance pertinent and competent.
The evidence so offered was not a communication by the patient to the physician, but was as to the independent knowledge of the physician, and was clearly competent, and the court erred in excluding the same.
The plaintiff offered evidence to the effect that his wife, during the dates in question, walked around the house and to market, and walked as naturally as anybody. To contradict this the defendant company introduced a Mrs. Kendall, a neighbor, and asked her the following question: “Did the woman walk a great deal or very little? What do you know of your own knowledge as to her going out much or little in those days, if you know?” Objection being made she was not allowed to answer. She would have answered, if permitted, that in those days Mrs. Howie walked out but little. The insurance company was clearly entitled to this evidence, because it had a direct bearing as to whether or not she was in sound health. As an element to show sound health the plaintiff attempted to prove that she did much walking, and the defendant had a clear right to show that the statements as to the walking were not true.
The insurance company by its counsel requested the court to give the following charges to the jury:
“2. If you find from the evidence that Mrs. Sarah Howie was not in sound health on the 12th day of November, 1894, and on the 25th day of September, 1893, the respective dates of the two policies upon which this suit is brought, you must find in favor of the defendant company.
“3. ■ If you find from the evidence that Mrs. Sarah Howie was not in sound health on the 12th day of November, 1894, the date of one of the policies, you must find for the defendant upon that particular policy.
“4. If you find from the evidence that Mrs. Sarah Howie was not in sound health on the 12th day of November, 1894, and on the 25th day of September, 1893, or on either of said days, you must find for the defendant, and it makes no difference whether she knew or did not know that she was not in sound health.”
The court refused to give either of said requests, and said to the jury:
“I have been asked by the defendant to make certain charges. Except as Í have given the matter in a qualified way in the general charge I decline to give these requests.”
The charge as given on the subject, and which the court conceded to the jury to be in a “qualified way” was as follows:
“I say to you, gentlemen, that if you find Mrs. Howie was not in sound health, within the meaning of the definition I have given you, if she was not thus in sound health on September 25,1893, and November 12, 1891, under such circumstances, it would be your duty to render a verdict for the defendant If you find that the plaintiff has complied with the terms of the policy in question, and if Sarah Howie was in sound health at the time of the issuance of these policies in question, under such circumstances the plaintiff would be entitled to recover.”
The charges as requested are direct and to the point, and should have been given, while the charge as given referred*to the circumstances, and was well calculated, if not intended, to furnish a suggestion to^ the jury by which they might ease their. consciences and bring in a verdict against the insurance company. A court in charging a jury should so evenly balance the scales of justice as not to indicate by a wink, look, shake of the head, or* peculiar emphasis, as to his notions as to which way the verdict should go. When a case is*to be submitted to a jury at all, it should be impartially submitted, and if the court feels that the case* is so clear as to require an indication from him, he should direct a verdict, and then his action can be easily reviewed in a higher court; but if he gives a charge which looks fair on paper, bui which is in fact distorted by his looks, attitudes, emphasis, winks, and rolling of the eyes, an unjust result is often attained which cannot be corrected in a higher court.
There is not much difference between the charge as requested and as given, yet there is enough to disclose to any good trial lawyer that a jury would understand that the court felt that the plaintiff ought to recover, and therefore the insurance company did not have a fair trial.
The judgments of the lower courts will be reversed and the cause remanded for a new trial.
Judgments reversed, and cause remanded.
Spear, Davis, Shauck, Price and Crew, JJ., concur.