3 A.2d 844 | Conn. | 1939
The plaintiff is the beneficiary upon a life insurance policy issued September 1, 1936, to her mother, Vienna Santanelli, who died April 27, 1937, of myocarditis and arteriosclerosis. On August 17, 1936, in her application for this insurance, by its terms made part of the policy and the basis of the defendant's obligation, the insured made this statement among *134 others: "18. Have you been attended by a physician during the last five years? If yes, give names of complaints, dates, how long sick, and names of physicians. No." The jury's verdict was for the plaintiff. The defendant moved that it be set aside, claiming that the answer to the above question constituted a material representation, which the uncontroverted evidence established to be false, and that the jury could not reasonably have found otherwise. The court denied the motion and the defendant has appealed.
That the representation was material to the risk as a matter of law cannot be questioned, and if false it prevented a recovery on the policy. State Bank
Trust Co. v. Connecticut General Life Ins. Co.,
These statements, made in the regular discharge of the doctor's duty as attending physician, which, so far as appears, were made prior to any employment by the defendant or arrangement to testify for it, stand uncontradicted and unexplained upon the record. They constitute not only unimpeached, but independent evidence of the vital fact that the insured, contrary to the express representation in her application, had been attended by this doctor within the five year period, for the serious malady which later caused her death. The official Massachusetts printed form of the certificate of death, Exhibit 2, calling as it does for certification by the doctor of the period of his attendance upon the deceased, having been received without limitation or objection, sufficiently indicates that this was information *136
required by law. It therefore constituted evidence of the truth of the fact stated. Hennessy v. Metropolitan. Life Ins. Co.,
The physician's statement in Exhibit B also afforded independent evidence to the same effect. The policy in this case contained no provision as to the manner in which proof should be made of the death of the insured. The plaintiff filed proofs of death upon blanks evidently furnished by the insurer, one of which was the statement of the attending physician. The blank had at the top this provision: "The following statement of the physician is submitted by me as part of said proofs" under the policy in question, and then followed the plaintiff's signature. Where the beneficiary in an insurance policy files as a part of the proofs of death such a certificate as this, under the circumstances of this case it amounts to an approval by him of the statements in it as correct and should be received in evidence against him as an admission by adoption. 2 Wigmore, Evidence (2d Ed.), 1073, p. 570. As an admission it affords evidence against him which, in view of its nature and purpose, in the absence of contradictory evidence, explanation or qualification, is entitled to great weight. In notes 17 A.L.R. 366, 42 A.L.R. 1455, 93 A.L.R. 1342, and 96 A.L.R. 335, many cases are gathered which deal with the admissibility and effect of such statements and these disclose a considerable variation in the conclusions reached. Professor Wigmore in a note to the section from which we have quoted, says (p. 571): "The question ought to be, in each case, whether the beneficiary has in fact adopted the statements as his own; there can be no general rule for all cases." In this case the plaintiff *137
was under no contractual obligation to file with the defendant a physician's certificate as to the cause of death and the use of blanks furnished by the company so far as appears was a voluntary act on her part. Under these circumstances the statements in the physician's certificate constitute evidence against her which, in no way contradicted or explained, must be accorded all the weight of a considered admission made out of court. Perrelli v. Savas,
Since it is undisputed that the insured accepted the policy, expressly based on the application which she subscribed, the evidence of her inability to read or write English renders the statements in the application no less binding upon her. Having accepted and retained the policy she was bound by its provisions. Ryan v. World Life Ins. Co.,
Under the second defense of the defendant's answer, it was a material issue at the trial whether the insured's statement in her application that she was born August 15, 1872, was false. The defendant claimed that she was in fact born ten years earlier, and sought to prove this by introducing in evidence Exhibit 3 for identification, *138 which was excluded by the court. This reads: "Province of Avellino, Community of Quindici. Birth Certificate. The Official of the Civil State hereby certifies that Santaniello Vienna, child of the late Saverio and the late Santaniello Caterina was born on the tenth day of the month of August of the year one thousand eight hundred sixty two . . .," and purports to be signed "Frezzaroli" as the "Official of the Civil State." It is not disputed that by the several seals and other signatures of officials thereon, including that of the United States consul at Rome, the document is properly authenticated.
It is clear that this instrument was not admissible as a certified copy of the record of the birth of the insured. Its very wording shows that it does not purport to be a copy. The "authority to certify a copy implies that the terms set forth by the officer as representing the original in his custody must be a literal copy, not merely the substance or the effect, of the original's terms"; and it is settled, therefore, in the absence of statute, that no custodian has authority to certify any less than the entire and literal terms of the original. 3 Wigmore, Evidence (2d Ed.) 1678. This court has accordingly held that "a certificate is not the proper evidence of a record, but there should have been a certified copy of the record itself." New Milford v. Sherman,
Nor was the instrument admissible as a certificate made by the Italian official who issued it, as the defendant argues, citing two cases only in support of its contention: Griswold v. Pitcairn,
The further claim of the defendant is that the existing treaty between the United States and Italy, of February 8, 1868 (15 U.S. Stats. at Large, 609, Article X), providing that: "Copies of such papers [specified contracts deposited with a consulate, etc.], and official documents of every kind, whether in the original, copy, or translation, duly authenticated and legalized by the consuls-general, . . . and sealed with their official seal, shall be received as legal documents in courts of justice throughout the United States and Italy," renders the certificate admissible as legal evidence of the date of *140
birth of the insured. No authority is cited in support of this contention, and it is unwarranted under a reasonable construction of the clause quoted. The extent of its effect is to permit the substitution of the authentication specified for the formal proof of genuineness which would otherwise be required. It is no more effective to make recitals of fact therein evidence of the existence of such facts, than it would be to render a fact relevant which in truth is irrelevant. The court did not err in excluding the certificate. Santomassimo v. New York, S. W. R. Co.,
There is error, and a new trial is ordered.
In this opinion the other judges concurred.