69 N.Y. 256 | NY | 1877
On the 17th day of August, 1867, the plaintiff took out a policy in the defendant upon the life of her husband, payable to him on the 14th day of August, 1902, if he should then be living, but in case of his death before that time, payable then to her. He died September 5, 1871, and this action is brought to recover the amount insured. The action is defended upon the grounds of breach of warranty, and fraud in the representations contained in the application upon which the policy was issued. At the close of the evidence, upon motion of defendant's counsel, the *259 court held that the uncontradicted evidence showed breach of warranty in the answers to certain questions contained in the application, and upon that ground directed a verdict for the defendant. Plaintiff's counsel excepted to the direction, and asked to have all the questions of fact submitted to the jury, and excepted to the refusal of the judge to comply with the request.
The plaintiff and her husband answered "no" to questions in the application whether he had ever had the diseases of bronchitis, consumption, or spitting of blood, or so far as he knew, any symptoms of such diseases; whether he had ever had disease of any vital organ; and whether he had ever had any habitual cough.
Upon the trial, after defendant had given evidence by physicians and other witnesses, that prior to the date of the policy the assured had spit blood and had a cough, and had symptoms of consumption, its counsel offered in evidence certain letters written by the assured to his brother: One written August 20, 1866, in which he stated, "at Binghamton I was taken with hemorrhage of the lungs, which made me look ghastly for a few days; am taking cod liver oil, and drinking tar water; do not cough much now;" and another written June 21, 1867, in which he stated, "my health is very poor; my cough hangs on to me; yesterday I was examined, and I find my right lung is affected; my physician recommends a trip to the salt water, and perhaps I may go in the course of a few days."
Plaintiff's counsel objected to these letters, on the ground that the statements were those of a person having no interest in the policy, mere hearsay, and not admissible. The court overruled the objections and received the evidence, and plaintiff's counsel excepted. It was not specified for what purpose these letters were offered or received, and the objection was general calling for their total exclusion. Hence, if they were competent for any purpose there was no error in receiving them. It is now well settled that they were not competent to prove the facts stated in them. (Swift v. *260 The Mass. Mut. Life Ins. Co.,
The letters, as above said, cannot be used to prove the facts stated in them. After all this evidence is stricken out, the defendant has lost the main features of its defence. It has left the evidence of several lay witnesses as to the spitting of blood by the assured to some extent, and as to his coughing and his appearance on several occasions. But on the other hand, the plaintiff has the certificate of defendant's examining physician, made at the time of the application, showing a perfect state of health, and the evidence of two physicians and other witnesses tending to show freedom from disease, a good state of health prior to the date of the policy, and that the spitting of blood may have been casual, and not the result of any disease. Without the improper evidence, there would have been such a conflict in the evidence as to his diseases and the state of his health before the date of the policy as to have required, as demanded by the plaintiff, a submission of the questions to the jury. For the error thus alluded to, then, the judgment must be reversed, unless for considerations now to be noticed an affirmance may still be had.
In the application were the following questions and answers: "Has the party had, during the last ten years, any sickness or disease? if so, state particulars, and the name of the physician or physicians who prescribed, or who were consulted." A. "Nine years ago had an attack of typhoid fever." Q. "Have you employed or consulted any physicians for yourself or your family? if so, give name or names and residence." A. "Dr. Paine, Putnam, Conn., nine years ago; he is now dead."
Annexed to the application was an agreement, signed by the plaintiff and her husband, in which it was declared that the answers contained in the application "are warranted to be full, correct, and true, and that no circumstance is concealed *262 or withheld in relation to the past or present state of his health, etc., which may render an insurance on his life more than usually hazardous, or which may affect unfavorably his prospects of life, and with which the directors of said company ought to be made acquainted," and in which it was agreed that if the answers were not in all respects full, true and correct, the policy should be void.
It was proved beyond question that in August, 1866, at Binghamton, the assured had an attack of spitting blood, and that a doctor was called, and visited and prescribed for him twice. Dr. Clark, of Niagara Falls, was called as a witness by defendant, and testified that he knew the assured at that place in June and July, 1867, that he was attending plaintiff who was sick, and that from June 16th to July 3d he also attended the assured daily, and prescribed for him. But the plaintiff testified that she was there, that she was sick, and that Dr. Clark attended her; that the assured was not sick, and that she never heard that Dr. Clark examined him. There were two other physicians called by the defendant who had attended the assured, but their attendance was after the date of the policy. Upon this evidence can it be held as matter of law that there was a breach of warranty in the answers in reference to the physicians? The answers were literally true. Dr. Paine had been his physician about the time mentioned, in a serious and protracted illness, and he was dead. It was not said that he had had no other physician, and if a fuller and more precise answer was desired, the defendant should have exacted it. It was full and complete so far as it went. (Fitch v. Am. Pop. Life. Ins. Co.,
When the language used in a policy may be understood in more senses than one, it is to be understood in the sense in which the insurer had reason to suppose it was understood by the assured. (Hoffman v. Ætna F. Ins. Co., *264
We are therefore of opinion that it was a question of fact to be submitted to a jury whether the answer of the assured as to the physicians employed or consulted, was honestly and fairly made, or whether a portion of the truth was fraudulently and intentionally suppressed or withheld.
The judgment must therefore be reversed and a new trial granted, costs to abide event.
All concur, RAPALLO, J., absent.
Judgment reversed.