92 N.Y. 274 | NY | 1883
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The defendant resists the verdict rendered in this action upon numerous grounds, the first of which is, that *280
there was a breach of warranty by the insured as to the health of his brother Terence; that there was no conflict of evidence to carry the question to the jury; and that the charge of the court upon the subject was erroneous. There was much and very strong evidence that, for a considerable period just before the warranty of the applicant that his brother's health was good, Terence was in fact ill, and was emaciated, weak, and had a consumptive cough. His employers so testify, and that, as a consequence, they sent him to their own medical adviser, Dr. Mareness, to be examined, upon whose report he left their employ as unable longer to endure the labor required. On the other hand, witnesses were examined who testified that during the same period he appeared to be in good health, that he looked like a healthy man, and gave no indications to the contrary. The controversy, therefore, revolves about the true meaning of good health as used in the words of warranty; the appellant contending that it means good, in fact, actual freedom from illness or disease, and that, so understood, there was no dispute about the facts since the sickness of Terence was proved, and the plaintiff's evidence never went beyond mere appearances and raised no issue over the real fact. But it must be remembered that the question put and the answer given related not to the applicant's own health but to that of a third person. Unless in rare and exceptional cases the insured answering could only answer from physical appearances and indications. He could not have the knowledge that an individual has of his own condition, though even in such case self-deception is not rare, and very often entirely innocent and honest. Such an inquiry and its answer must necessarily be understood in a general and ordinary, and not in a strict and rigid sense. One who is not a doctor and speaks not of himself but of a third person, necessarily gives rather an opinion founded on observed facts than an absolute and accurate fact when he describes the health of such person as good. He means, and is understood to mean, that the individual inquired about has indicated in his action and appearance no symptoms or traces of disease, and to the observation of an ordinary *281
friend or relative is in truth well. He means that, because he cannot usually mean any thing else; and the insurer naturally and necessarily must so understand question and answer, and, considered as a warranty, the answer warrants what it means and nothing more. The authorities almost, if not quite without exception, justify this view of the scope and meaning of an answer warranting the good health of a third person. (Cushman
v. U.S. Life Ins. Co.,
Another objection to the recovery is founded upon the answer given by the applicant to the medical examiner of the company which in the written statement denies, on the part of the insured, knowledge of the cause of his sister's death.
The question is serious. It is conceded that the sister of the insured, before his own application, died of consumption; that the insured knew the fact; that it was material to the action of the insurance company which was entitled to know the truth; that the fact was concealed and a false answer that the applicant did not know was made, either by the applicant or the medical examiner; that the false answer was in fact written down by the latter; but that the insured told him the precise truth and the actual fact. The controversy is thus narrowed to the single question, who was responsible for the falsehood; was the insured chargeable with it, or was it the sole fault of the company through its medical examiner? On the face of the papers it was the insured. His application, signed by him, *283
and with knowledge of the contents of which he is prima facie
chargeable, declares and warrants that his answers to the questions therein contained, "and to those in the examiner's report herewith are fair and true." The examiner's report contains the falsehood; and appended to that is the certificate of the insured, signed by him, in these words, viz.: "I hereby declare that I have given true answers to all questions put to me by the medical examiner, that they agree exactly with the foregoing, and that I am the same person described in the accompanying application, and whose signature is appended to declaration and warrant herewith." This certificate in terms confesses that the questions appearing upon the paper to have been answered by the applicant were in truth answered by him; that they were written out upon the paper before its signature by the applicant; that as so written they agree exactly with the answers made; and that the insured knew that fact and had knowledge of how they were written. Stopping at this point the case is clear. It is one in which the truth is told to the medical examiner; where the latter, instead of the truth, writes down a falsehood; where the applicant reads and knows the answer that is written, and with full knowledge of its falsity as written certifies that it is true and "agrees exactly" with the answers in fact made. This is the applicant's written admission. It is conclusive upon him, unless by some sufficient proof he explains and rebuts it. If he did read the answer as written, if he knew of its presence and still certified to its truth, the fraud was his. The medical examiner might write down the untruthful answer by mistake or inadvertence, but the applicant could not read it and then certify to its truth without fraud. It is evident, therefore, that no proof can explain and answer the applicant's certificate which falls short of showing either that the answer was not written when the certificate was signed, or at least was not known to the insured when he made such signature. In a former case against the same defendant the first of these facts was proved. (Grattan v. Met. Life Ins. Co.,
Here the admission of knowledge by Hugh of the cause of his sister's death, relatively to the written answer signed by him, tended to convict him of a falsehood and a fraud. That was *285
the use to be made of the admission and the purpose of its proof. Whatever else in the letter tended to modify or destroy that effect of the admission and change its purport from a confession of guilt to an assertion of innocence, was a qualification of the statement to which the plaintiff was entitled. The case ofDilleber v. Home Life Ins. Co. (
The question asked Dr. Mareness, viz.: "what opinion did you form, based on the general sight of the man, before you made an examination, or before you had any conversation with *287
him?" was properly excluded as privileged within the statute. The doctor had never seen him before, nor seen him since. His whole knowledge came from the one interview, which was wholly and purely of a professional character. We have distinctly held in such a case that the communication to the physician's sense of sight is within the statute, and as much so as if it had been oral and reached his ear (Grattan v. Met. Life Ins. Co.,
Dr. Halves was examined as a witness by the defendant, and testified that he was called as a witness on a former trial, but did not say by whom; and that he attended Terence in his last illness. He was then asked if Terence died of consumption, which was excluded. The question was then put whether upon such former trial he was not asked by the plaintiff's counsel if he attended Terence in his last illness, to which he answered in the affirmative, and that Terence died of consumption. This and some similar evidence offered was excluded. The appellant claims that this ruling is erroneous, upon the ground that the silence imposed upon the physician is a personal privilege which may be waived, and that the questions put on behalf of the plaintiff on the former trial amounted to such a waiver But the evidence was inadmissible for two reasons. What the witness testified to on a former trial, he being living and present for examination on the second trial, could only be proved for the purpose of contradicting him or of refreshing his memory. No emergency of that kind existed to justify the proof. To establish a waiver of the right to prevent disclosure, *288
the only proof necessary or competent in any event was the fact of the inquiry by the plaintiff. The answer given was not needed for such purpose. It was the question which opened the door. But we do not agree that the plaintiff's inquiry on the former trial precluded his objection on the latter one. It was an incident in the mode of trial. It waived for that occasion and under then existing circumstances an objection which might have been relied upon. It was in no sense an admission of the party, but proof by a witness. The party was not even then bound by the fact, but might disprove it. Owen v. Cawley (
It was claimed that the assured warranted his occupation to be that of a soda-water "dealer," when in fact he was a soda-water "peddler." If there was any material difference between the phrases, it was cured by proof that the actual facts were truthfully stated to the defendant's agent, and the expression used was the latter's choice as correctly stating the truth. *289
Some other exceptions taken have been examined, but do not require special consideration.
The judgment should be affirmed, with costs.
All concur, except EARL, J., not voting.
Judgment affirmed.