Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-20
OREGON SUPREME COURT DECISIONS
Text Published BY Courtesy Of F. Turner Reporter of the
Supreme Court

Have you within the last seven years
consulted any person or physician in
regard to personal ailments?' To
which the answer is written in ink
No" This application was introduced
in evidence by the defendant and sup
Iplemented by the testimony of a ply
sician as in the former trial to the
effect that she had consulted him
with reference to bodily ailment with
in seven years prior to the date of
the application. The plaintiff in re-
buttal called the physician who con-
+ Quoted the examination and asked him
if the question was asked Mrs. Beard
at the time of the examination. The
examiner answered that it was. The
plaintiff then propounded this ques-
tion to the witness: "State what her
answer was and what explanations
she made, if any, in regard to it,
The defendant objected to this on the
ground that the application itself be-
ing a written instrument and being
the best evidence on that point, 1t
could not be modified by parol testi.
mony and upon the further ground
that 1t was an attempt to prove a
waiver without the same having been
| pleaded. This objection was sustained.
The plaintiff excepted and offered to
prove, in substance, by the witness
in response to the question that he
was the examining physician of the
defendant corporation and as such
was its agent; that the applicant stat
| ed to him, in answer to question Is
that she had been visited by Doctor
Miller upon one occasion within seven
years and that Miller told her she had
mild form of lagrippe; that he had
written one prescription and her hus-
band had brought home a bottle of
medicine and that the answer to the
question in the negative was written
by the witness in pursuance of his
explanation to her that the facts as
she related them did not constitute a
consultation of physician. The exc
cution of the application for insur-
ance, with question 1S answered in
the negative having been admitted
the evidence offered was clearly such
evidence as would be an Impeachment
or modification of that written in.
strument and could not be admitted
unless the issue was raised on the
! ground of fraud or misrepresentation
! or something in that nature. The rul-
! ing of the court in that respect was
correct. Supplementing this offer oi
testimony, counsel for plaintiff then
asked leave of court to file an amend
ed reply alleging an estoppel in addl-
tion to the reply on file. The plead
ing was not rendered in written form
and the court declined to allow such
reply to be filed. The court had
discretionary power under Section 102
L. o. L. at any time before the cause
was submitted to allow a pleading to
be amended by striking out the name
of any party or by correcting mis-
take in the name of party or mistake
in any other respect or when the
amendment does not substantially
| change the cause of action or defense
! by conforming a pleading or proceed
ing to the facts proved. Even the dis
cretion of the court is limited by the
| terms of that section and is not abso-
lutte and uncomfortable. In this case
the amendment did substantially
change the position of the plaintiff
on the pleadings and besides it did
not conform to the facts proved, for
the testimony relied upon to establish
the estoppel had been rejected. The
court very properly refused to allow
the written instrument to be I'M
peached by the testimony of the wit.
ness.
Moreover, the scope of the amend,
ment was to stop the mouth of the
defendant, to maintain one Of its prin-
cipal defenses, viz, that the answer
to question IS was not true. Even il
the discretion of the court could be
expanded to cover such case and
such an amendment, the plaintiff was
so dilatory in waiting till near the
close of the second trial to offer il
I that the court would not have erred
within the widest discretion in deny.
ing the application. The other ques'
tions raised we're covered substan-
TALLY in the former hearing of this
case, which becomes the law of the
case under the authority of Bakei
County " Huntington, As Ore. j93
The judgment of the court below Is
| affirmed