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ed, or beneficiary whether it be in a case of fire, J. D. Cole, an uncle of the assured, testimarine or life insurance."

fied that he was a neighbor of his nephew, Said pleas were therefore properly over- and saw him nearly every day, that all durruled.

ing the spring and summer of 1908 his neph[2, 3] On the merits, the contention of the ew worked in the field and at hauling logs, defendant is that the statements made by and appeared to be as healthy as any man in the assured in his application for reinstate the country, and made no complaint of not ment, to the effect that, “except as noted be- feeling well. low, his health has been good and has re

S. M. Emerson, the man in charge of the mained unimpaired since the last examina-commissary of the sawmill for which the astion for policy No. 1,384,385," and that "he sured was hauling logs, testified that during has not consulted a physician since that the summer of 1908, after the assured got time,” were false, and have had the effect through with his crop, he saw him every of avoiding the policy.

day until “along up in the fall," and that This raises a question of fact, for the he had the appearance of a healthy man; that determination of which an examination of

logging is very heavy work, and takes a the facts is necessary.

strong, healthy man. Both the district court and the Court of

Dr. McLemore testified that he attended Appeals found against defendant upon the

the assured as his physician in the spring of facts; or, in other words, found that the

1908; that he was suffering from measles said statements of the assured were true.

and mumps; that he recovered within 15 or Mrs. Cole, the plaintiff, testifies that her son was taken with the measles in Novem- 20 days, with the exception of some swellber, 1907; that the attack lasted two or

ing of the glands of the throat; that, after three weeks; that he was up and out of his the assured was up from bis attack of mea

sles and mumps, he treated him for a hacking room in December, and entirely well in January, except that the measles seemed to cough, and for the swelling of the glands of have settled on his throat; that there were

the throat; that something like two months "little kernels that never did entirely go

after he had got up he consulted him about away"; that no remedy was used for these the condition of his throat, and also as to kernels; that he seemed to be entirely well, his backing cough; that he thinks he examand made no complaint; that he was well ined him three times during the summer of the whole year, and worked all the time, 1908; that in September he advised him to and did not consult a physician until the consult a specialist; that he is not positive last of November, 1908, when he began to about the date, as he is testifying only from complain of his throat, and consulted Dr. memory, his books having been lost; that McLemore, who advised him to see a special- his reason for advising him in September to ist.

consult a specialist was that he did not imMrs. Cole, widow of the assured, testified prove under his treatment; that from the that her husband died February 4, 1909, a time he convalesced thoroughly from the little over three months after her marriage; measles until December, 1908, when his genthat until the latter part of November, 1908, eral health began to fail, his general health he was in good health; that the first inti- was good, and he considered him a good risk mation she had of his throat being sore was for insurance; that he was not hoarse, and in the latter part of November, when he his speech was unaffected; that he examincomplained of it.

ed him at the time of the reinstatement of the policy, and reported his general health of the throat,” and could not tell how long and physical condition good; that the con- the throat of the assured had been affected dition of his throat had in no way impaired except from assured's own statement, which his health so far as he, witness, could de- was that “the date of the attack was about tect; that he simply had a sore throat which a month prior," but that, as an expert, he he, witness, diagnosed as a catarrhal condi- would say that "the inflammatory condition tion of the throat.

had not existed more than one month;" that In addition to this testimony of Dr. McLe assured said that for 12 months prior to that more, there is in the record the following time his throat became occasionally inflamed, letter written by him to the agent of the and that these attacks were caused from an defendant company on March 25, 1909, short attack of measles; that no one had been ly after the death of the assured:

treating him for this sore throat; that he "Dear Sir: I hereby certify that I was the had an occasional attack of sore throat, but original medical adviser of W. Walter Cole, paid no attention to it until the attack of and I attended him in the spring of 1908 for measles, after which he developed this tubercu- December 7, 1908. lous condition of the throat which I prescribed

Dr. Dowling testifies as follows: for him at intervals during the summer, and advised him to consult a specialist in Septem- "There was an inflammation of the nose, ber of the same year. "Respectfully, A. C. McLemore, M. D."

nasopharynx, and larynx with some ædema

of the epiglottis. There was a very small Referring to this letter, Dr. McLemore ulcer of the larynx just above the vocal cords says in his testimony:

on the right side near the anterior com"This letter is correct, but misleading in this: missure.” That he could not estimate how Miring the time I was treating Cole, in the summer of 1908, I had not diagnosed his case long the throat had been affected, but would as tuberculous; but was treating him for mere inflammation of the throat, which I learned aft- presume "he had suffered from some form erwards, through the specialist, was tubercu- of catarrhal trouble for some time.” That lous. This information was obtained through the condition which he found "sometimes the specialist whom he consulted in December, 1908, or January, 1909, I am not sure. I had develops very rapidly." That he has no not thought of his condition being tuberculous until after his consultation with the specialist, record of the statements of the patient, but which I think was in December, 1908, or Janu- recalls that he said he had been suffering ary, 1909; and my reference in the letter to

tuberculous condition of the throat made with the sore throat for about two weeks, March 25, 1909, was based on my opinion of and that he insisted that he had been enjoyhis case at the time, after the report of the specialist, and not on my opinion of the case ing good health up to a few days before. before the report of the specialist.”

That his conclusion was that the patient had Dr. McLemore was a witness for the de- tubercular laryngitis, and that a microscopfendant. Defendant also took by commission ical examination of the sputum confirmed the testimony of Dr. Durham of Winn Par- this diagnosis. ish, whom the assured had consulted on De

From the foregoing evidence it is perfectly cember 7, 1908, and of the specialist in clear that the assured was sincere in saying throat troubles, Dr. Dowling, of Shreveport, that he was in good health. In fact, he was whom the assured had consulted on Decem- in good health, unless this occasional soreber 31, 1908, but did not offer the depositions ness of his throat was tuberculous; for the in evidence; and same were offered in evi- law of the life insurance, in accord in that dence by the plaintiff.

respect with popular understanding, does Dr. Durham testified that he found "an not regard a mere passing ailment such as inflamed condition of the mucous membrane an occasional inflammation and soreness of the throat as an impairment of the general ( not expected to answer with literal correcthealth of a person. 25 Cyc. 812.

ness as to the present condition of his health, For showing that this soreness of the but only to the best of his knowledge and bethroat was tuberculous the burden of proof lief; and the foregoing evidence, we repeat, lay on defendant. 25 Cyc. 928, 929.

leaves no doubt that the assured in this case Defendant cannot be said to have dis- did so answer. charged this burden, since the evidence Having thus reached the conclusion that leaves doubtful whether this soreness of the said statement as to present good health the throat was already tuberculous at the was a mere representation and not a wartime of the reinstatement. But, here again, ranty, it becomes unnecessary to consider the we find an inference so strong as to amount other point argued in the briefs, as to whethpractically to proof; so that we prefer not er Act 52, p. 86, of 1906, applies to the reinto rest the case upon the failure of the de statement of a lapsed policy, as contended by fendant to have discharged this burden of plaintiff, or exclusively to the original is. proof, but upon the more certain ground that suance and delivery of a policy, as contended this statement as to condition of health was by defendant. Said act reads as follows: not a warranty, needing to be literally true, "That every policy of insurance issued or debut a mere representation, needing to be day of January, nineteen hundred and seven, by

livered within the state on or after the first true only to the best of the knowledge and any life insurance corporation doing business

within the state shall contain the entire conbelief of the declarant.

tract between the parties and nothing shall be We think the view most consonant with incorporated therein by reference to any consti

tution, by-laws, rules, applications or other reason and justice is that, if a policy con- writings unless the same are indorsed upon or tains anything which would tend to render attached to the policy when issued; and all doubtful whether the question as to present sured shall in the absence of a fraud be deemed

statements purporting to be made by the incondition of health is intended to be answer representations and not warranties. Any waived with literal correctness or only to the void.”

er of the provisions of this section shall be best of the declarant's knowledge and be.

[4] Passing to the consideration of the lief, the latter interpretation must be adopt-other statement made by the assured in his ed under operation of the rule that policies application for reinstatement, whereof the are construed most favorably to the assured. falsity is claimed by defendant to have Moulor v. Am. L. Ins. Co., 111 U. S. 335, 28 avoided the policy, namely, that assured bad L. Ed. 447; 3 Cooley, Briefs on L. of Ins., p. not consulted a physician, we find as a mat1955; 1 May on Ins. (4th Ed.) p. 156 (mat- ter of fact that, if the consultations testified ter in brackets); Reppond v. Nat. L. Ins. Co., to by Dr. McLemore did take place at all 100 Tex. 519, 101 S. W. 786, 11 L. R. A. (N. during the summer of 1908, they were for a S.) 981, and note.

mere temporary soreness of the throat, which Now, while the original application for the nobody looked upon as being serious; that policy in this case (made part of the policy) they were not "consultations" within the contains the usual general warranty clause, meaning of that word as used in the policy, “I hereby agree that all the following state and as understood in the law of life insurments and answ rs are by me warranted to

The law upon this point is stated in be true," it contains also the following ques. 17 Am. & Eng. Ann. Cas. 1203, as follows: tion: "Are you now in good health so far as "In some jurisdictions it is held that a conyou know and believe?" a question which within the meaning of a question as to such

sultation with, or attendance by, a physician. shows conclusively that the applicant was matters as in an application for life insurance,

ance.

refers to a consultation or attendance for a Dr. McLemore was testifying from memory serious or severe ailment, and not for a slight after the lapse of two years, without the aid and temporary indisposition."

of his books, which had been lost. His fixing Among the decisions cited in support of these consultations in the summer conflicts this are those of the home state of the de- with the positive testimony of the mother fendant company-New York.

and the wife of the assured, who must have That the assured, when making his applica- known of the condition of his health, and tion for reinstatement, did not look upon with the statements of the assured made these consultations (if, indeed, they had then without motive for concealment. The fact already taken place) as having been such is it conflicts with Dr. McLemore's own teswithin the intendment of the policy, appears timony wherein he says that in these confrom his not having mentioned them in his sultations he did not look upon the matter statement. He would have been without as serious and gave no advice. This is inmotive for making a secret of them, for consistent with the statement, made later on there can be no doubt that he did not con- in his testimony, that, when he saw the trousider this soreness of his throat as having ble would not yield to treatment, he advised been or being anything serious. When ques- the patient to consult a throat specialist. tioned by Dr. Durham, and later by the If the consultations were in the latter part throat specialist, Dr. Dowling, in December, of November and the early part of December, two months after the reinstatement, he was and the treatment and the advice to consult positive that his health had been perfectly a specialist were in the course of them, all good until a few days before the consulta- conflict in the evidence disappears. And we tion with Dr. Durham. He certainly had must conclude that such was the case. We every reason for answering truthfully to the know for certain that Dr. McLemore was: physician whom he was consulting, and no mistaken as to the date of the attack of motive whatever for concealment. The evi- measles and mumps, he fixing it in the spring dence leaves no doubt that he, his mother, of 1908, when all the other witnesses, toand his wife, and even Dr. McLemore, con-gether with the statements of the assured sidered his sore throat nothing more than in the application for reinstatement, fixes it a common, temporary inflammation of the in the fall of 1907; and we think that he throat-a mere trivial, passing ailment, not

was, in like manner, mistaken as to the date impairing the general health.

of the consultations. Indeed, apparently, his wife did not even

The application for review is dismissed, at know of its existence. His everyday life and the costs of the relator. work were not in the least disturbed by it.

In expressing doubt as to these consultations having taken place, we do not mean to

(56 South. 648.) imply that they did not take place at all, but

No. 19,021. that they did not take place during the sum

STATE v. REEVES. We are satisfied that Dr. McLemore treated the assured for sore throat at one (Nov. 13, 1911. Rehearing Denied Dec. 11,

1911.) time; but we think it was in the latter part of November and early part of December,

(Syllabus by the Court.) some time after the reinstatement of the pol. 1. CRIMINAL LAW (8 594*)–CONTINUANCE

GROUNDS-DILIGENCE. icy, and not, as Dr. McLemore testifies, in

The refusal of a trial judge to grant a conthe summer preceding the reinstatement. tinuance because a witness is out of the state

mer.

PEAL.

was

is not reversible error, where the defendant has 1 7. JURY (8 63*)-CRIMINAL LAW ($ 1144*) not exercised the proper diligence, and where SUMMONING JURORS-PRESUMPTIONS ON APhe fails to show that the witness will return within a reasonable time, especially when, in The making of the headings of a proces the opinion of the trial judge, the testimony verbal before the jury commission meets will of this witness would be merely cumulative, not nullify this proces verbal. Nothing prej. and not material.

udicial to the accused has beeu shown, and this [Ed. Note.-For other cases, see Criminal court will give effect to the presumption omnia Law, Cent. Dig. 88 1321-1332; Dec. Dig. 8 rite acta. 594.*]

[Ed. Note.-For other cases, see Jury, Dec. 2. CRIMINAL LAW ($ 1151*) – APPEAL – RE- Dec. Dig.' 1144.*]

Dig. § 63 ;* Criminal Law, Cent. Dig. § 3017: VIEW-DISCRETION OF TRIAL COURT,

The refusal by a trial judge of a motion 8. HOMICIDE ($ 190*)-ADMISSIBILITY OF EVIfor a continuance will not be interfered with DEXCE-THREATS. unless it was arbitrary and prejudicial, and Where no overt act has been made by the presents a clear case of abuse of the judicial prosecuting witness, testimony to prove threats discretion. State v. Murray, 111 La. 688, 35 prior to the shooting is inadmissible, more esSouth. 814; State v. Satcher, 124 La. 1015, 50 pecially as the alleged threats were not made South. 835.

shortly before the shooting. (Ed. Note.-For other cases, see Criminal

[Ed. Note.-For other cases, see lIomicide, Law, Cent. Dig. 88 3045-3049; Dec. Dig. $ Cent. Dig. $8 399-413; Dec. Dig. § 190.*] 1151.*]

9. CRIMINAL LAW (88 413, 419, 420*)-Evi3. CRIMINAL LAW ($ 594*) - CONTINUANCE- DENCE-DECLARATIONS-HEARSAY. GROUNDS–DILIGENCE.

Self-serving declarations and hearsay evi. As the motion to reassign the case

dence are not admissible. based on the same grounds as the motion for [Ed. Note.-For other cases,

see Criminal continuance, since the court had the right to Law, Cent. Dig. $S 928–935, 973-983; Dec. refuse the continuance, it also had the right to Dig. $8 413, 419, 420.*] refuse the reassignment. [Ed. Note.-For other cases,

10. CRIMINAL LAW (8 1171*)—APPEAL-PREJ

see Criminal Law, Cent. Dig. 88 1321-1332; Dec. Dig. S

UDICE FROM ERROR-REMARKS OF COUNSEL. 594.*]

It is only when the utterances of a district

attorney are entirely out of place and have 4. JURY (8 63*) — IMPANELING — JURY Cov- exerted an improper influence on the minds of MISSION—CLERK.

the jury that this court will set aside the ver: Act 220 of 1902 provides that, where the diet, and remand the case for trial. Where no clerk of court is ill, the deputy clerk may act injustice is done the accused by the remarks of in his stead as the clerk of the jury commission. the district attorney, the verdict will not be

disturbed. [Ed. Note.-For other cases, see Jury, Dec. Dig. $ 63.*]

[Ed. Note.--For other cases, see Criminal

Law, Cent. Dig. 88 3126, 3127; Dec. Dig. $ 5. JURY (8 121*)-QUASHING VENIRE-Exam- | 1171.*] INATION OF WITNESSES.

11. CRIMINAL LAW ($ 72014 *)-TRIAL-ARGUOn a motion to quash the venire because

MENTS OF COUNSEL-OPINION. the deputy clerk had acted in the place of the clerk, the cross-examination

The remark of the district attorney to the

of the deputy clerk, called to testify as to the inability of the jury that “the verdict is demanded" is not obclerk to perform his functions, must be confined jectionable, and affords no grounds of reversal. to an examination of the grounds alleged in

[Ed. Note.--For other cases, see Criminal the motion. The latitude of the cross-examina- Law, Cent. Dig. $ 1677; Dec. Dig. & 72014.* ] tion cannot be broader than the pleadings, nor can the defense develop by cross-examination Appeal from Thirteenth Judicial District a state of facts not alleged by the pleadings.

Court, Parish of Rapides; W. F. Blackman, [Ed. Note.-For other cases, see Jury, Dec. Dig. $ 121.*]

Judge.

Augustus Reeves was convicted of assault 6. JURY (8 63*)—MAKING OF LIST-JURY ComMISSION-REGULARITY OF PROCEEDINGS.

with intent to kill, and appeals. Affirmed. The acts of a jury commission will not be nullified, unless it is shown that fraud has been

Hunter & Hunter and Blackman & Overcommitted, or that their acts if allowed to ton, for appellant. Walter Guion, Atty. Gen., stand, will work a wrong to the accused.

and John R. Hunter, Dist. Atty. (G. A. Gon(Ed. Note. For other cases, see Jury, Dec. Dig. 8 63.*]

dran, of counsel), for the State.

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