143 Mich. 369 | Mich. | 1906
The defendant, the Metropolitan Life-Insurance Company, is a New York insurance com
As evidence tending to establish the untruth and incorrectness of these statements, the defendant offered in evidence the proofs of death furnished by the beneficiary, who is the plaintiff. The defendant, to show the answer was untrue as to her parents, grandparents, brothers, and sisters, not having consumption or any pulmonary disease, offered in evidence certificates of death, filed with the health board, and identified by the physicians who filled them out, and who testified that the statements were true, showing that the mother and two sisters died of consumption prior to the issuing of the policy. The defendant also offered the testimony of the physicians, who made out the certificates of death, as to the correctness of the certificates of death; and that the mother and sisters of the insured died of consumption, and had consumption prior to the date of the application. The defendant also offered to show that the mother and two sisters had consumption and died therefrom, prior to the date of the application, by the husband of the mother of the insured and the stepfather of the insured; and also by the immediate neighbors of the family of the insured.
The certificates of death were held inadmissible by the court, because they disclosed matters which were claimed by the plaintiff to be privileged. The physicians’ testi
Were the proofs of death admissible for any other purpose than to show that the insured was dead ? It is claimed they are admissible under the following provision in the policy:
“ Proofs of death shall be made to the home office in the manner and to the extent required by blanks furnished by the company, and shall contain answers to each question propounded to the claimant, physicians, and other persons indicated in the blanks, and shall further contain the record and verdict of the coroner’s inquest, if any be held. The proofs of death shall be evidence of the facts therein stated in behalf of, but not against the company.”
And, also, under the following decisions: John Hancock Mut. Life-Ins. Co. v. Dick, 117 Mich. 518 (44 L. R. A. 846); Wasey v. Insurance Co., 126 Mich. 119. We think under these cases the testimony should have been admitted as being in the nature of an admission, though it was not conclusive. It is said that, even if admissible, it is immaterial, because the jury might not infer that because the assured died of consumption, that she had that disease when she was insured, citing Redmond v. Benefit Ass’n, 150 N. Y. 167. It is probable that this contention is true if no other proof was offered to establish the fact, but proof cannot all be offered at once. The testimony was competent, and though but a link in the chain of testimony, it was competent to make it; for a chain is made up of a succession of links.
Did the court err in holding the testimony of the physician was inadmissible because of privilege? The testi
Did the court err in holding that the certificates of death were inadmissible ? Section 4617, 2 Comp. Laws, reads as follows:
“All certificates of death, local registers, or county records authorized under this act, or certified copies thereof, shall be prima facie evidence in all courts, and for all purposes, of the facts recorded therein.”
It is said:
“ These certificates were not admissible for two reasons:
“First. They were secondary evidence when primary was obtainable.
“ Second. Their contents being privileged matter, under section 10181, 3 Comp. Laws, the offer of their admission was an attempt to circumvent the statute and accomplish indirectly that which the statute directly forbids.”
It is also said that to hold their admission admissible under section 4617 is to nullify section 10181, 3 Comp. Laws, and that, as .the first-named section was enacted last, without a repealing clause, it will not have that effect, counsel citing Buffalo Loan, Trust & Safe Deposit Co. v. Aid Ass’n, 126 N. Y. 450; Davis v. Supreme Lodge Knights of Honor, 165 N. Y. 159; McKinley v. Insurance Co., 26 N. Y. Supp. 63.
An examination of these cases will show they are not controlling. In the first two cases the certificates were not made under a general law of the State, but because of what in one of the opinions is characterized as an obscure
Did the court err in refusing to receive testimony of others than physicians as to the disease which caused the death of the assured ? Counsel cite only the case of Grattan v. Insurance Co., 80 N. Y. 281, in support of the ruling. In a brief paragraph language is used which sustains the ruling of the trial court. We do not, however, think that decision is controlling. Would it be claimed that an experienced mother would not be competent to say whether a child had measles ? Or that an intelligent person of mature years who had seen many cases could not tell whether one had so prevalent a disease as consumption ? In Elliott v. Van Buren, 33 Mich. 49, Justice Campbell, speaking for the court, said:
*374 “We think there is no rule which can prevent ordinary-witnesses from describing what they see, or from testifying concerning the kind of injury or sickness of others whom they have had occasion to consort with, unless it is something out of the common course of general information and experience, or unless the question presented involves medical knowledge beyond that of ordinary unprofessional persons. It would be ridiculous to shut out testimony of what any juryman would understand well enough for all the exigencies of the case before him, simply because no physician has seen or examined the person. It would lead to a denial of justice in all cases of bodily injuries and sickness which did not occur within range of medical help, and which were not regarded as so difficult of treatment as to demand it. There is no danger that the introduction of common testimony on matters of common knowledge will do any more mischief, when open to cross-examination before a court and jury, than would arise from the want of any legal means of selecting witnesses from the numerous class of professional men, who differ as much in their relative merits as many of them do from laymen.”
See, also, Rogers v. Ferris, 107 Mich. 126; State v. Knapp, 45 N. H. 148.
We think the testimony competent. Its weight was for the jury. For the reasons stated, the judgment is reversed, and a new trial granted.