185 A.D. 861 | N.Y. App. Div. | 1919
The action is brought by the widow of Hery Sparer to recover upon a policy of life insurance issued by the defendant upon his life, dated May 15, 1917. Sparer died December 15, 1917, after an operation for cancer of the stomach in St. Mark’s Hospital. In answer to the questions in his application which is annexed to and becomes a part of the policy, Sparer answered as follows: “ 11. I am in sound condition mentally and physically.' I have never had any bodily or mental infirmity or deformity — except as herein stated. No.
“ 12. I have not been disabled nor have I received medical or surgical attention within the past five years — except as herein stated. No.”
After the insured presented the said application Dr. Barton, one of the defendant’s medical examiners, called upon him and upon examination discovered a scar on his abdomen. The insured told the doctor that he had an operation in Austria two or three years before; otherwise the insured appeared to be a healthy man. Dr. Barton reported to the company and another medical examiner was sent to see the insured. Sparer told him that while on a visit to his mother in Austria he had a short illness with some intestinal disturbance, pain in the stomach and vomiting. He was taken to the hospital and an operation performed for an abscess which left the scar; that he was in the hospital a week or ten days and within a month he returned to America, and that the surgeons allowed him to eat anything a few days after the operation. The doctor, thinking this was a slight matter, recommended the granting of the policy. After notice of death was sent by the insured’s son, it was discovered that about three months prior to his application he had been three weeks in Mt. Sinai Hospital in New York city, and that he was treated by Dr. A. A. Berg. This was all proved in the plaintiff’s case. Defendant moved for a dismissal and the motion was denied.
The defendant then sought to prove by the operating and assistant surgeon at the St. Mark’s Hospital and by the hospital records, the condition that the insured was in at the time of the operation. This was properly excluded
The court asked plaintiff’s counsel: “ No objection is made by plaintiff to the fact that the proof is offered or the form of the offer?” Plaintiff’s counsel responded: “No, sir,” and the court excluded the proof and defendant excepted. While it would have been the better practice to have put Dr. Berg on the witness stand and asked questions, it was competent for the justice, with the consent of plaintiff’s attorney, to accept and rule upon an offer of proof. I think the exclusion of the latter part of the offer of proof was erroneous.
The doctor could not have described the operation or any condition that • he observed which was necessarily disclosed by an inspection of the body of the insured. He could have testified that he at a certain time performed an operation on the insured at the hospital. In Klein v. Prudential
The court also erred in the charge to the jury. The court laid down as a rule of law that the defendant must satisfy them that the representation was false, that the insured knew it to be false, that he made it with intention of deceiving the defendant, that it was material and the defendant relied upon it. Upon the defendant’s counsel taking exception to that portion of the charge the court said: “ I think you attach undue importance to that because I said substantially to the jury that it is conceded that he had received some medical attention, and of course it is perfectly evident if he had, he must have known it, so that those two items are not elements that the jury is to consider. The real issue before the jury is whether the misstatement was made for the purpose of deceit, whether the company relied on it and whether it was material.”
The application statement was annexed to the policy and contained this statement: “ I hereby agree for myself and for any person who may have or claim an interest in any contract which may be issued upon this application as follows: * * * 2. That every declaration hereinabove contained is true.” There can be no doubt that the representation that the applicant had not received medical or surgical attention within the. last five years was a material representation, for had the truth in that regard been disclosed the company would not have issued its policy. Under these circumstances the materiality of the representation was a question for the
The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Clarke, P. J., Latjghlin, Shearn and Mbrrell, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.