90 N.Y.S. 697 | N.Y. App. Div. | 1904
The defendant’s motion to dismiss plaintiff’s complaint should have been granted. That Achsah Pierce was in poor health at the time she made her application is established by uncontradicted evidence. The presiding judge in charging the jury stated that it was conceded that she died of cancer, and submitted to the jury whether or not she was suffering from cancer at the time the application was made. The testimony of Julia Gurney and Victoria Scavenick shows conclusively that during October, November and December, 1901, while they were working with the deceased, she was complaining of being unwell and seeking lighter work because her health was not good, and told them that the doctor told her she was afflicted with cancer. The letter of the deceased written on December fifth to her daughter, which appears in evidence, shows that she was far from being a well woman, and that she was not in good health as represented by her in her application. In the letter she states : “ I am feeling quite well except the pills and them are oh oh, but Dr. Hall says he will tell mo Sunday all about me * * * and I can keep on to work just the same, he says of course I ought to rest for I am all run down and no blood but I am taking his medison so I shall be all better for just looking at him, last knight I felt better and Miss H has got another woman to help me now so that is better.” This letter was written upon Thursday, in which the deceased says that the doctor tells her that he will tell her what is the matter with her upon Sunday. Meantime, upon Saturday, she makes this application for insurance.
At the end of December she stopped work, and in February took to her bed from which she never arose until her death on July 15, 1902. The doctors must have diagnosed her case as cancerous at least some time in December, 1901, as it was then that she told the witnesses that she had a cancer as she had been told by the doctor. The uncontradicted evidence of one of the doctors upon the stand is that a cancer would have progressed for two or three months before it could be diagnosed as such by a physician. It seems clear, therefore, that on December seventh, when this appli
It is contended on behalf of the plaintiff that this proof cannot be made by the declarations of the deceased, and in support thereof the case of Dilleber v. Home life Ins. Co. (69 N. Y. 256) is cited. That case, however, was not the case of an action brought by the executor of the deceased insured. The rule that the declarations of a deceased are admissible as against her executor has no exception in an action upon a policy of life insurance. Her letter, therefore, as well as her admissions to witnesses that she was troubled with cancer, are competent evidence to prove the facts. With this conclusion it is unnecessary to discuss the other grounds claimed by defendant as grounds for a reversal of the judgment.
All concurred.
Judgment and order reversed and a new trial granted, with costs to the appellant to abide the event.