27 N.Y.S. 696 | N.Y. Sup. Ct. | 1894
The action was brought to recover on a policy of insurance for $5,000, delivered by defendant to one Charles C. Blummer on August 1, 1887, and assigned to one Charles H. Elliot. Blummer died January 8, 1890, and Elliot on June 9, 1891, and thereafter letters of administration were taken out by the appellant. The defenses to the action were that defendant was imposed upon by Blummer by the suppression of facts which he should have divulged, and by false and fraudulent statements and misrepresentations, which constituted breaches of warranty, and that the claim was barred by a special contract limitation of one year.. The policy provided that “if any misrepresentations, or fraudulent or untrue answers or statements, shall have been made, or if any facts which should have been stated to the association have been suppressed, * * * then this agreement shall become null and void;” and in the written statement made to the medical examiners the assured warranted the answers made by him to be.true. In his application the assured stated that no company had ever-declined to grant insurance on his life; and, in support of tb° view that this was a false statement, an application made by tne assured in 1883 to the Equitable Life Assurance Society was produced and offered in evidence, which showed that it had been declined by that company. In laying the foundation for this testi
The objection to this paper being received with the memorandum of Dr. Phillips upon it was that it was the declaration of a third party, and it is now insisted that the failure to call Dr. Phillips, and prove what his action was, was fatal to the admissibility of the paper; the argument being based upon the rule that a mere memorandum is not evidence against third parties, except when made in the usual course of business, and when it is shown that the party who made it is dead. In this argument, however, the counsel overlooks the fact that it was not sought to show what action had been taken by Dr. Phillips, but rather what was the action of the company; and, there being no objection taken, and no point made but that the indorsement was in the handwriting of Dr. Phillips on the original application, the question is presented whether this is competent evidence of the action of the company. If such action had been by a resolution of the board of directors, upon proving the authenticity of such resolution by the minutes of the company, a proper foundation would have been laid for the admission of the minutes in evidence to prove the action of the company. We think the same principle is applicable where, as here, the action of the company is to be determined, not by reference to resolutions in its minutes, but by what was done by the person authorized to state the company’s action. As shown, the person upon whom this office and duty devolved was Dr. Phillips; and there would be as much force in the suggestion that, after the minutes of a board have been properly proved, before they would be admissible it would be necessary in all cases to produce the secretary who wrote them, as in this case to insist that before the action of the company could be shown it would be necessary
The other argument against the force to be given to this evidence—that, although the application was declined, there was no proof that such declination was known to the assured—we regard as equally unsound. It is true, as suggested by appellant, that the verb “decline” has two meanings; but in its ordinary acceptation it meant just what it said, in connection with the language used in the question, and which could not have been misunderstood by the assured. It required him to state -whether he had made any previous application to another company, and whether such application had or had not been declined. Having warranted his answer, whether he knew or not was immaterial, because by reason of such a warranty he was bound to know whether it was true or not; and having taken the risk of that, even though he had no actual knowledge, and no proof was offered to show it was a willful falsehood, it was sufficient for the defendant to show as a matter of fact that the answer was false. He had applied, in August, 1883, for a policy in the Equitable Life, and when he made his application to the respondent four year later, in 1887, he knew that none had been granted; and yet he warranted the answer which he made, that an application had not been made by him to any other company and declined.
The assured also stated that he was not afflicted with any disease or disorder; that he had not had any serious illness, local disorder, or personal injury, tending to shorten life; that he had never had dizziness, or disease of the bladder or urinary organs. He was asked to give the name and residence of his usual medical attendant, and he stated that he had not consulted one. To show that these statements were not true, the uncontradicted evidence given by Dr. Baldwin, who examined Blummer in 1883, was that upon an examination of the urine of the assured he found it contained sugar, from which he concluded that it indicated diabetes; and, in addition, the son of the assured in his testimony says that he heard his father speak of the fact of having trouble with his kidneys, and that he was accustomed, prior to his death, to use test tubes for the purpose of ascertaining about his kidney trouble or urinary trouble, and that he had, at different times before his death; at least three physicians who attended him for a number of years and up to his last illness. The plaintiff presented no evidence to destroy the force and effect of this testimony, and therefore there was no conflict which required that the learned trial judge should submit the question to the jury.
In addition to the defenses thus considered, there is another, which we regard as equally fatal to the plaintiff’s right to recover upon the evidence as it stood, and which justified the dismissal of the complaint. The policy provided that the by-laws and regulations of the association were to be considered as part of the contract between the assurer and the assured. These contained the provision that, in any suit upon a certificate of membership or claim
We think that, upon any of the grounds to which we have referred, the ruling of the trial judge was right, and that, upon the whole case, the judgment should be affirmed, with costs.
PARKER, J., concurs. VAN BRUNT, P. J., concurs in result.