Page:North Dakota Reports (vol. 48).pdf/324

 plication, and during several months immediately preceding and several months immediately subsequent to that time. The tenor of this testimony is, as to her general appearance of health, her ability to do her ordinary housework on the farm where she and her husband lived, her participation in social affairs, and considerable other evidence of the same character, all of which tended to show that during said time she was in a normal state df health.

The evidence shows that plaintiff and his wife resided on a farm for about 14 years, near Tioga, Williams county. They were residing on this farm at the time the application was made. The mother of the deceased, Mrs. Theimer, resided near Graceville, Minn., where lived one Dr. Oliver. In the latter part of June, 1919, the insured visited her mother, Mrs. Theimer, and on or about June 28, 1919, visited Dr. C. I. Oliver, of Graceville, who examined her to ascertain her state of health, took an X-ray of her stomach, and who had her detail her health history. The evidence would seem to indicate that she had been having severe pains in the upper part of her stomach for some time prior to that time, having at times, after eating, a very uncomfortable feeling, and experiencing accumulation of gas in the stomach. Her mother, Mrs. Theimer, also testified by deposition to her having pains, and that she consulted Dr. Oliver, with reference thereto.

It is claimed Dr. Oliver diagnosed the trouble as cholecystitis, and that he so informed the insured, but the jury found that he did not do so. He prescribed for her. He testified that, so far as he could tell from examination, all her organs were normal, with the exception of the lining of the gall bladder. He found a little tenderness in the upper part of the stomach. She weighed from 165 to 170 pounds.

The defendant contends that all of the evidence of plaintiff given Ly the lay witnesses, relating to the condition of her health at or about the time above stated, was incompetent, irrelevant, and immaterial, and should not have been admitted to rebut what it claims to be the positive, undisputed, and conclusive evidence of Dr. Oliver, as to her condition at the time he made the examination.

It will be noticed, on reading Dr. Oliver’s testimony, that he depends about as much on the personal history, as given him by the insured at the time she consulted him, as he did on his examination of her. In other words, the result at which he arrived was not wholly determined from his examination of her, but partly on the statements of her condition, as