78 A.D. 18 | N.Y. App. Div. | 1902
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide event.
The action was upon an endowment certificate for $2,000, issued to Sterling B. Alden, plaintiff’s husband, by the defendant in March, 1889.
The defense was based upon alleged false and fraudulent statements in the application for the certificate. It was made to the Sandusky Tent. May 1,1888, an application was made to the Johnsonburg Tent, and on such former application the medical examiner’s report showed that the action of insured’s heart was unsteady, and thereupon his application was rejected and he was notified of
The answer in question was material to the risk, it was untrue, and was known to the insured to be untrue when he made it. Very likely, in the absence of any proof on the part of the plaintiff in explanation of the making of the answer, fraud and bad faith would be inferred, and the court be justified in taking these questions from the jury and directing a nonsuit or verdict for the defendant. The plaintiff attempted to give some proof by way of explanation to avoid the inference or conclusion of fraud or bad faith.
The application was taken by one Spring, who was designated as a special organizer, and the witness Lewis was with him at the time. Lewis testified that he knew of the insured’s former application and rejection, and was then asked if he knew of any communication or transaction about it at the time the present application was made, and plaintiff offered to show that Spring knew about such former application and rejection and told the insured to make the answer in question, and that he, Spring, would take the application with him and explain the former rejection to the defend
This evidence was clearly competent, and should have been admitted as bearing upon the questions of fraud and bad faith hereinbefore referred to. The credibility of the witness would have been for the jury, and they could have believed or disbelieved the evidence. If it had been received, however, the court would not have been authorized to dispose of the case itself, but would have been obliged to submit these questions to the jury.
The defendant seems to have received payments from the insured upon the certificate during his lifetime, and he appears to have regarded the certificate as valid while he lived. His widow should not be deprived of the benefits intended to be secured to her under the certificate unless the insured, by his actual fraud and bad faith, forfeited all rights under such certificate. Failure of counsel upon the trial to take exception ought not alone, under all the circumstances of this case, to have the effect of defeating a recovery which otherwise might have been had upon the certificate. A full fair trial upon the merits should be afforded the plaintiff, and this can only be brought about by the reversal of this judgment and the granting of a new trial.
The views herein expressed lead us to conclude that the judg
McLennan, Hiscock and Davy, JJ., concurred ; Spring, J., not sitting.
Judgment reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.