| N.Y. App. Div. | Mar 15, 1902
Plaintiff is seeking to recover the sum of $1,000 and interest upon a policy of life insurance issued by the defendant April SO, 1900, upon the life of Gtottlieb Seidenspinner, and wherein plaintiff was designated as beneficiary. The insured died October 28, 1900.
The only questions litigated upon the trial or presented here, were and are whether the insured in procuring said policy was guilty of a breach of warranty which avoided it through misstatements as to other policies of insurance in force upon his life, and as to sicknesses which he had suffered.
At the close of the trial, which was before a jury, each side asked to have a verdict directed in its favor. Among the questions and answers contained in the application of the insured for the policy in question were the following: .
“ A. Have you ever applied to any company, order or association for insurance on your life without receiving exact kind and amount of insurance applied for % (If yes, give particulars.) No.
“ B. State name of company, order or association which has declined to issue a policy on your life or postponed you. None.
“ O. State whether any company had refused to restore a lapsed policy on your life. (If yes, give particulars.) None.
“ D. Is any application or negotiation for other insurance on your life now pending or contemplated ? (If yes, give particulars.) No.
“E. State amount of insurance you now carry on your life, with name of company or association by whom granted and the year of issue. (Enumerate each.) None.
*478 “ F. If insured in this company, in ordinary, industrial or intermediate, give policy numbers. None.
“ Is there any other insurance in force on your life? None.”
At and for some time prior to the date when said questions were asked and answered as aforesaid, plaintiff was a member of four associations, namely, Wuertemburger Suavia Benevolent Association No. 1 of Buffalo, N¿. Y., East Buffalo Wuertemburger Schwaben Verein No. 2, Freiheit Court No. 144 of the Foresters of America, and of one of the lodges of Odd Fellows. -
Under the constitution and by-laws of two of those associations, provision was made simply for the payment of certain funeral expenses, and it is hardly claimed that these provisions constituted an “ insurance ” within the meaning of the questions in the application. - Stronger facts in. behalf of the appellant are presented in connection with the Wuertemburger Suavia Benevolent Association, the constitution and certificate of incorporation of which were put in evidence. It appears from them that such association was incor-. porated under the acts, chapter 368 of the Laws of 1865, as amended by chapter 668 of the laws of the same year. By its certificate of incorporation it is provided that “ the particular business or .object of its creation is to accumulate by initiation fees, quarterly ■dues, fines and interest, a fund "out of which tó assist each other (the members) in time of sickness and death, as prescribed by the Constitution and By-laws of the same.” The constitution provides that the object of the association shall be “ To support one another in word and deed, in days of need and sickness; to bury the dead with honors, as well as to help the widows and orphans of deceased members according to means,, and to cultivate moral education.” It further provided certain qualifications of membership, amongst which was the examination of • every proposed candidate by a physician. Small quarterly dues were provided for and then the further provision was made that at the death of each member “ each brother is to pay one dollar until the treasury shows the amount of $3,000.” Under the heading “ In Regard to Benefits,” it was provided that “ At the death of a member in good standing for six months the widow or legal heirs of the deceased shall receive the sum of $150; at the death of the wife of a member in good standing for six months he shall receive from the treasury $50.”
While such associations are brought within some of the statutory provisions with reference to tile supervision of the general subject of life insurance and while they are sometimes spoken of as being engaged in the business of life insurance, it is apparent that that feature in the organization and existence of the association in question was, to say the least, very primitive. No separate fund was provided out of which death losses should be payable. There probably was no practical way in which the association could enforce the payment by members of dues and assessments from which to pay the benefit sums which became payable upon the death of a member or his wife. No certificate of membership was issued such as in the case of many benefit and aid associations takes the place of a regular insurance policy. The constitution designated the person to whom the sum payable upon the death of a member or his wife should go, and there was no power given to the member to name any other, beneficiary. While the sum paid at death necessarily partook somewhat of the character of the moneys payable under a regular life insurance policy upon death, still evidently the predominating idea was that of aiding and helping members rather than engaging in what might be regarded as a regular insurance business.
Having these considerations in mind, we come to the more particular consideration of the questions and answers. It is claimed by appellant that the insured especially was untruthful in answering “ none ” to the following two questions: “ State amount of insurance you now carry on your life, witli name of company or association by whom granted and the year of issue,” and "Is there any other insurance in force on your life 1 ”
We think that an examination of the first question in connection with the other questions which preceded it, fairly warrants the conclusion that it indicated an insurance in some company or association which had issued some form of policy or certificate. We think further, that men’s minds might reasonably differ as to whether or not the last question, taken in connection with the others, did not mean some form of formal insurance evidenced by policy or certificate, and might differ upon the issue whether this question fairly
If, as we think, different inferences might be drawn as to whether the questions stated called for different answers and information than was given", then an issue of fact was presented for a jury to pass upon.. Each party, however, asked the trial justice to direct a verdict. Neither side requested to go to the jury upon the question indicated. Under those circumstances,, a verdict having been directed, it is to be presumed that the trial justice found upon any question of fact involved in such manner as to authorize and sustain the verdict. (Kirtz v. Peck, 113 N. Y. 222; Provost v. McEncroe, 102 id. 650.)
Upon the trial the learned counsel for the defendant sought to have admitted certain evidence in regard to the payment to the insured of sick benefits by the associations already named as -indicating that he was sick at different and other times than admitted in his application.. "We think, however, if it should be assumed that such evidence was competent, that by his questions and offer he did not make it sufficiently clear that such evidence, if admitted, would have indicated sicknesses at other dates than those admitted in the application to present error. Further than that, while excepting to the rulings of the court, the counsel admitted that the -evidence sought for was not the best evidence which could be given of illness. We think an examination of all that took place at this point of the trial discloses that no such material error was committed as. to call for reversal.
In accordance with these'conclusions we think the judgment and order appealed from should be affirmed, with costs.
McLennan,- Spring, Williams and Davy, JJ., concurred.
Judgment and order affirmed, with costs.