81 N.Y.S. 90 | N.Y. App. Div. | 1903
The action is brought to recover the sum of $2,000 upon a beneficiary certificate issued by the defendant on the Ilth day of November, 1895, to Charles Hopkins Jennings who died on the 18th day - of February, 1898, after having been admitted to membership in its Star Council No. 44 at Danbury, Conn.! The plaintiff is the widow of the decedent and in the application for membership he designated her as his beneficiary and, according to the terms of the' beneficiary certificate, the beneficiary fund is payable to her. The defendant contested the claim on account of alleged breaches of warranty, misrepresentations and fraudulent concealment of facts by Jennings in his application and in the medical examination. The other material facts were admitted upon the trial, and the only issues litigated were those arising on these affirmative defenses interposed by the defendant.
■, Before the close of the evidence, the court ruled that the answers made by the decedent in the • medical examination were warranties of the facts. At the close of all the evidence a motion was made for a dismissal of the complaint. The court reserved its decision and submitted seven questions to the jury for special findings. Counsel for the defendant excepted to the refusal of the court to grant his motion and to the submission of such questions. The
First. The plaintiff interposed no reply, but upon the trial she gave evidence tending to show a waiver or estoppel on the part of the defendant from interposing this defense on account of an investigation instituted by the defendant’s supreme council in the month following Jennings’ admission to membership. If the defendant in the lifetime of Jennings became aware of all the facts upon which it is now contesting this claim and acquiesced in his remaining in the order and continued to receive dues and assessments from him down to the time of his death, undoubtedly it would be deemed to have waived such defense and would be estopped from interposing the same. (Phoenix Life Ins. Co. v. Raddin, 120 U. S. 183; Titus v. Glens Falls Ins. Co., 81 N. Y. 410; McGlure v. Supreme Lodge, 41 App. Div. 131; Morrison v. Wisconsin Odd Fellows' Mutual Life Ins. Co., 59 Wis. 162; Bacon Ben. Soc. & Life Ins. [2d ed.] §§ 104a, 427, 431.) Upon the trial, however, the court ruled that the evidence offered by the plaintiff was insufficient to establish either a waiver or estoppel. The evidence being insufficient to establish a waiver or estoppel as matter of law, it does not avail to sustain the judgment; and whether it was sufficient to present a question for the jury may not properly be determined on the defendant’s appeal.
Second. The second question submitted to the jury was as follows: “ When was the deceased last attended by a physician prior to the. said twentieth day of October, 1895 ? ” By question No. 14 in the medical examination decedent was asked, “ When were you last attended by a physician ? ” and his answer was, “ Last Jan.” The next question, No. 15, was, “For what ailment?’’and his answer was, “ Cold.” According to the undisputed evidence as we find it in the record the answer to question No. 14 treated as a warranty was untrue. Dr. Dunham, who attended Jennings in his final illness and made the death certificate and who apparently was a disinterested witness, testified unequivocally that he attended and. prescribed professionally for the decedent in the month of February, 1895, making eleven visits; the first visit on the first, and the
The ruling of the court that the answer of decedent to this question was a warranty left no question of good faith or intention to be considered, but merely.the plain question of fact as to when the decedent was last attended by a physician. (Dilleber v. Home Life Ins. Co., 69 N. Y. 256.) This finding is not only against the weight of the evidence, but contrary to and unsupported by evidence.
Third. The application on which the decedent was admitted to membership in the defendant was made on the 10th day of October, 1895, and the medical examination thereunder occurred on the twentieth day of the same month. The third question specially submitted to the jury was, “ Had the deceased at any time prior to the said twentieth day of October, 1895, applied for membership in the Loyal Additional Benefit Association ? ” The jury answered this question in the negative. The applications for membership are made to the Loyal Additional Benefit Association. One of the questions put to the decedent in the medical examination was “ Have you. ever before applied for membership in the Loyal Additional Benefit Association % ” His answer was, “ No.” In the month of May, 1895, there was no council of the defendant in Bridgeport, Conn. It appears that after some inquiries the decedent and thirty-one others signed a petition addressed “ To the Supreme Councilor, Officers and Members of the Supreme Council of the Loyal Additional Benefit Association ” in the form required by the constitution and by-laws of the defendant and upon a blank furnished by it for leave to establish a subordinate council at that place to be known as “ Phoenicia Council, No. 77, Loyal Additional Benefit Association.” Upon and pursuant to that petition a council was duly instituted under the name suggested in the petition at Bridgeport on the 7th day of June, 1895. Upon the blank form of petition there was printed in small type just above the signatures information to members concerning the fees, dues and assessments required to be paid, and that a council could not he instituted with
Fourth. Dr. Osborne of Pasadena, Cal., was examined as a witness for the defendant by commission. It appeared that he had attended Jennings’ father and mother professionally when Jennings resided with them at Southport, Conn., in the year 1895, and that when making professional visits there in attending other inmates of the household he noticed and observed the physical health and condition of Jennings, the decedent. He was asked to state fully the appearance of Jennings at those times and the knowledge he acquired concerning his health and physical condition and to fully describe his health and physical condition and to state what, if any, disease or diseases, ailment or ailments he was then afflicted with. This was objected to upon the ground that it appeared that Dr. Osborne was the family physician of the decedent, and the objection was sustained and defendant excepted. It did not appear from Dr. Osborne’s testimony that he was the family physician or that the information sought related to any knowledge acquired by
Fifth. Dr. Oley, who examined and passed the decedent at the time he was admitted to membership in the .defendant, was called as a witness for the plaintiff. On his direct examination he was asked concerning an interview between him and some of the officers of the defendant after the death of Jennings at a time when the alleged first application and medical examination had before Dr. Banks in May, 1895, were exhibited to him. He testified that Mr. Apgar, the legal adviser and examiner of claims of the defendant, at that time asked him if, in view of the variance between the answers in the two sets of medical examination, he thought Mr. Apgar could
We are of opinion that this evidence was incompetent and that its reception constituted, prejudicial error. The plaintiff’s counsel, after himself drawing out the declarations of the doctor adverse to his client, made at that interview, was permitted to show that they were made on the assumption that the first medical examination was a genuine document which counsel for the plaintiff contested upon the trial. It was not competent for him then to place before the jury the weight and influence of the opinion of Dr. Oley in favor of the payment of this claim and his reasons for such opinion. Sufficient has been stated to show that this judgment cannot stand and a new trial must be granted. There were other errors of a less serious nature committed in the reception of evidence, but on the new trial they will doubtless be obviated, and need not now be specially considered. -
Sixth. We are of opinion that the case was tried upon an erroneous theory and we deem it our duty for the guidance of the trial court to give .expression to our views upon that subject, although upon the trial the defendant had the benefit of the erroneous rulings and the question is not, therefore, directly presented by the appeal. Ordinarily, statements of material facts which are within the personal knowledge of an applicant for life insurance are warranties and their falsity will defeat a recovery on the policy.
We are also of opinion that the application and medical examination should be construed together and alike. As has been seen, in the medical examination there is no express reference to the application, but in the application there is an express reference to the medical examination, and the applicant is required to “ consent and agree that any untrue or fraudulent statements, or any concealment of facts therein (meaning in the application), or to or from the medical examiner,” should work a forfeiture of all rights under the beneficiary certificate. It is clear, we think, in view of this clause, that the answers contained in the medical examination are to be construed as warranties of the facts or as representations, according as we construe the application. It seems plain, from the language employed, that what the defendant led the applicant to believe it desired was an honest disclosure of his knowledge on the subjects to which the questions related. Furthermore, it will be observed that in the clause at the close of the medical examination, which the defendant contends is a warranty, there is no express warranty of
The case of Foley v. Royal Arcanum (78 Hun, 222; affd., 151 N. Y. 196) is distinguishable in that there an express warranty of the truthfulness of the statements was not qualified, as here, by a clause-showing that the warranty was intended to be that they were true to the best of the knowledge and belief of the applicant. Moreover, as shown by the opinion at General Term, it was immaterial whether they were warranties or representations, for the applicant knew he had the diseases and had been treated therefor.
For the reasons stated the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Van Brunt, P. J., and Patterson, J., conpurred; Hatch, J., concurred in the 1st, 4th and 6th propositions discussed in this opinion; Ingraham, J., concurred in result.
Judgment and order reversed, newt-rial ordered, costs to appellant to abide event.