66 Barb. 462 | N.Y. Sup. Ct. | 1873
By the Court,
This is an action on a policy of life insurance procured on his own life by George Mulliner, on the 31st day of December, 1869. Mulliner died on the 20th day of April, 1870, from an overdose of laudanum, taken by him to cure a severe headache. The answer alleged that Mulliner, upon his application for a policy, had made certain specific representations, which at the time he knew to be false, and that the facts so knowingly misrepresented were material to the risk. The exceptions to which our attention is called by the counsel for the defendants are of three classes, namely: Exceptions to the rejection of evidence, an exception to the admission of evidence, and an exception to the charge. These exceptions will be considered in their order.
The first is upon the exclusion of a question put to Dr. Mandeville, who, as a medical examiner for the company, made an examination of the deceased, and a report upon his application. The evidence tended to show that Mulliner had, during his lifetime, been subject, at intervals, to severe headaches, and that on these occasions he had frequently resorted to the use of laudanum as a medical remedy. Among the printed questions to be answered by the medical examiner, was, “ Are the functions of the brain, the muscular and nervous systems in a healthy state ?” And the Dr. stated that when he came to this question he asked Mulliner, “Have you ever had any difficulty with your head or brain?” to which Mulliner answered, “No, never.” Another of the printed questions addressed to the medical examiner was, “ To what extent does the party use tobacco, ales, or alcoholic stimulants.” • And the Dr. states that to this question he added the words “or
The next exeception was upon the exclusion of a question put to Horace E. Clark, a non-professional witness. It appeared that- Mulliner had stated to Dr. Mandeville that neither of his parents had, to his knowledge, been afflicted with mental derangement. Mr. Clark, who had formerly lived in the neighborhood of the parents of Mulliner, .had described certain eccentricities of conduct on the part of Mulliner’s mother, such as talking to herself, wandering about, and making contradictory statements. He was then asked ‘ ‘ State whether the things you saw and heard from her struck you as rational or irrational?” This court has held, in Van Zandt v. The Mutual Benefit Ins. Co. (MS. May Term, 1872,) following the Court of Appeals in Clapp v. Fullerton, (34 N. Y. 190,) that where the question of sanity is in issue, such a question may be put to a nonprofessional witness in reference to the conduct and acts of the party whose sanity is under investigation, and which conduct and acts have been observed and are described by the witness. We must therefore consider it in the abstract as admissible, and the exclusion of it error. But it seems to be quite apparent in the case that if technically érroneous, the ruling could not have operated injuriously to the defendant. The defendant wholly failed to establish any such state of known and
The next exception arises upon the exclusion of a question addressed by the defendant’s counsel to Dr. Durand. The witness had stated that he had one or more interviews with Mulliner, and had some conversation with him in regard to the headache with which he (Mulliner) was occasionally afflicted. And the counsel for the defendant was seeking to get from the witness an opinion as to whether Mulliner’s headaches were neuralgia or proceeded from a disordered stomach. The witness had declined to give any medical opinion; he was then asked by the counsel for the defendant, “Did you get enough’ ’ (meaning in the interviews before referred to) “to satisfy your own mind?” The witness answered “I think I did, but not enough to have a medical opinion on.” The defendant’s counsel then asked him, “ What impression was made on your mind?” This question on objection was excluded. It is very clear that the exclusion was proper. It was the medical opinion of the witness which alone was competent. If he declined to give such an opinion, on the ground of the want of sufficient information, that was the end of the matter. His opinion, unless he would undertake to base it upon his professional knowledge, was no more admissible than that of any other man.
The main and important question arises upon the exception to the charge. The court had instructed the j ury that for the actual truth of all the answers to the questions contained in the application the insured was responsible, and that if any of these answers were untrue in point of fact, whether wilfully and designedly or fraudulently so, or not, then the policy was avoided.
In order to see the application of this charge and Refusal- to charge to the pleadings and evidence ip the case, it is necessary to ascertain what allegations of misrepresentation contained in the answer can be founded upon the statements made to Dr. Mandeville. They are as follows, as set up in the answer: “That he, the said Mulliner, had never had any serious illness. That neither of his parents had been afflicted with mental derangements. That the functions of his brain, his muscular and nervous systems were in a healthy state. That he never used opium in any forip.” These are the only specifications of false representation which can be
As to the allegation concerning the mental derangement of his mother, we have seen that the representation was not absolute a§ set up in the answer, but was qualified by reference of Mulliner’s own knowledge on the
The next allegation claimed to be false is that he represented that the functions of his brain, his muscular and nervous systems, were in a healthy state. It does not appear that Mulliner made any statement to Dr. Mandeville concerning the functions of his brain or his muscular and nervous systems. The interpretation which the defendants put upon what he "said about his head and brain is that he substantially answered the question put to the Dr. as to the functions of his brain, in the negative. There does not appear to have been any sufficient evidence, in the case, of any functional disease of the brain ; such evidence as there was tends to the contrary conclusion. Dr. Mandeville says that serious functional or organic diseases would ordinarily be inconsistent with such a state of apparent physical health and development as Mulliner presented; that, ordinarily, serious disorder of the brain would not be consistent with the condition in which he found Mulliner’ s system; and that the state in which he found Mulliner’s pulse was evidence, to his mind, that his brain was in a healthy condition. Dr. Clark, who had been called to visit Mulliner professionally on the occasion of one of his headaches, and who-states that he made a diagnosis of the disease, says that he formed an opinion that Mulliner’s headaches arose from indigestion and derangement of the stomach and bowels; and that those occasional headaches would not necessarily produce organic disease. A function is a peculiar or appointed action ; the word is derived from one which signifies to perform. A functional disease of the brain
Another representation alleged to have been false was that concerning the use of opium. The printed question was, “To what extent does the party use tobacco, ales or alcoholic stimulants?” This question, the Dr. says, he put to Mulliner, adding the words “or opium.” The answer of Mulliner was : “I have never used tobacco in my life, or liquor in any form, and I have never used opium.” The answer, it will be observed, alleges' this representation a little broader than it is proved. It states the representation to have been that he never used opium in any form. This statement is alleged to have been false, for the reason that it appears that Mulliner had, on several occasions, resorted to the use of laudanum, as a medical remedy for his headaches. He-had also taken Dover’s powders for the same purpose. Dover’s powders being a well known preparation containing'opium as one of its ingredients; and as is proved, ón one occasion a solution of morphine • was used by Dr. Clark upon Mulliner for the same purpose, by subcutaneous injection. Laudanum is in reality an alcoholic preparation of opium, known in medical science as the “tincture of opium,” but properly known as “laudanum,” and very many people have no knowledge tiiat the liquid known to them as “laudanum” contains any opium whatever. And it might be a serious question whether the representations alleged should not be strictly construed, and as referring only to the substance commonly known as “opium,” the substance which would be understood to be inquired for, and would be furnished by any druggist upon an inquiry for opium. Só, too, laudanum contains alcohol, and is undoubtedly, to a certain extent, as a matter of science,
But we do not intend to rest the decision of the motion wholly upon the ground heretofore stated. ■ The representations set up'in the answer are alleged with a
Were these oral statements made by Mulliner to the medical examiner warranties, so that they must be absolutely true in all particulars, or the policy is void yyithout regard to their materiality or to the good faith and honest intention with which they were made % A warranty is a contract; and to constitute a warranty of fact, in a policy of insurance, it must, be incorporated into the contract, either upon the face of it or by reference, “ Courts lean in favor of a construction which makes a given statement a representation rather than a warranty. Warranties will not be created or extended by construction. They must arise, if at all, upon the fair interpretation and clear intendment of the words used by the parties.” Bliss on Life Insurance, § 53, and cases cited.) “A warranty will be strictly'construed as not extending beyond its precise terms.” (Id. § 54.) “A warranty is never to be created by construction, but must necessarily result from the nature of the contract, or must appear on the face of the policy, or in its body.” (Jefferson Ins. Co. v. Cotheal, 7 Wend. 73. See also Chase v. Hamilton Ins. Co., 20 N. Y. 52; 14 Barb. 383; 4 Hill, 329.)
In Eddy Street Foundry v. Hamden &c. Ins. Co. (11 Clifford, U S. 300,) it is held by Justice Clifford that “All statements contained in the policy itself are prima facie warranties, while extraneous statements are regarded merely as representations, even when made formally, in writing or in answer to written or
From the foregoing views it results that the request to charge was properly denied, if for no other reason, because it lacked the necessary qualification that the statement must be material. The materiality t of the representation was a question for the jury, (Campbell v. New England &c.. Ins. Co., supra;) and to have instructed the jury according to the request, without qualification, would have been erroneous.
That portion of the charge excepted to. referred to the representation alleged in the answer to have been “ that the functions of his brain, his muscular and nervous system, were in a healthy state.” The court said: “ 1 charge you that the gist of the allegation in this respect against George Mulliner, is fraud on his part,” &c. This allegation referred to was the allegation of the answer, and was entirely correct, as the answer is to be understood as distinctly averring a wilful falsehood in this respect, though in an argumentative form. The representation not being a warranty, the only remaining allegation is one of fraud. After the cause had been tried on this issue the defendant was bound by it, as the plaintiff may have contented himself with evidence sufficient to satisfy the jury that Mulliner practised no wilful deception in the. matter. But if' the charge had been erroneous, it was immaterial, for the reason before stated, that there was no sufficient evidence in the case of any functional disease of the brain. And for the
On the whole, then, we are of the opinion that the exceptions to which our attention has been called in this case present no' error which calls upon us to direct a new trial.
A new trial is denied, and judgment ordered for the plaintiff on the verdict.
Judgment for the plaintiff.
Mullin, and Talcott, Justices.]