7 N.Y.S. 847 | N.Y. Sup. Ct. | 1889
All the questions of fact in this case were properly submitted to the jury, and the issues decided in favor of the plaintiff. The verdict is amply sustained by the evidence. The first defense alleges a breach of warranty as to age, occupation, duties, and physical condition. All of these questions of fact were submitted to the jury under an unexceptionable charge, and that must be held conclusive. It is clear that there was no deception or fraud in regard to age of the insured, as the agent was informed of his true age, and made the mistake in putting it down.
What was stated as to the duties sufficiently apprised the defendant of their character; and, if anything more definite was required, it was the duty of the company to ascertain the facts by proper inquiries.
Heither is the weight of evidence in favor of the proposition that any misrepresentation was made as to physical condition. There was no dispute that the assured was injured; and the question whether the accident caused his death was decided by the jury, upon conflicting testimony, in favor of the plaintiff. The notice and proofs of injury and death, while, perhaps, not technically what were required by the policy, were served upon the company, and retained by them; and further or more definite notice and proof were waived. Keeney v. Insurance Co., 71 N. Y. 396; Brink v. Insurance Co., 80 N. Y. 108. The case of Aldrich v. Association, 21 N. E. Rep. 873, we do not regard as in point. In that case the different duties pertaining to the occupation of the assured had been classified, and the question was, under what class did the assured’s occupation fall at the time of the injury? It was not claimed that there was fraud in the warranty which rendered the policy void, but it was a question as to the construction of the policy. In this case the claim was made that the warranty was false. It was, therefore, a question of tact, to be determined by the jury upon conflicting testimony. We have examined with care the very able brief of the counsel for defendant, but are unable to find in the record any errors sufficient to warrant a reversal of the judgment. It is therefore affirmed, with costs. All concur.