5 N.Y.S. 233 | N.Y. Sup. Ct. | 1889
Lead Opinion
Only two questions are presented on this appeal which bear-upon the plaintiff’s right of recovery, which are: (1) Were the statements contained in the application upon which the certificate in suit was issued, as-to the health of the deceased, untrue? (2) Was there a valid settlement of the plaintiff’s claim? Upon the first question much evidence was given on the trial. The evidence introduced by the defendant tended to show that when such certificate was obtained, and when the application therefor was-made, the decedent was, and for a considerable time prior thereto had been, afflicted with diabetes, which he well knew, and that this disease was the-cause of his death. On the other hand, the evidence introduced by the plaintiff was to the effect that the decedent never had diabetes, and that his death was not the result of that disease. Upon this question there was a direct conflict in the evidence. The question was submitted to the jury by a charge-in which the court very fully and fairly presented the evidence bearing upon it, and to which no exception was taken. It is a general rule that a new trial, will not be granted on the ground that the verdict is against the weight of evidence, where the testimony is contradictory. It is only where the verdict .is so clearly against the weight of evidence as to furnish proof that the jury were influenced by passion, prejudice, or mistake that it should be set aside. It is not enough that the court would have reached a different conclusion. From a careful study of the evidence, we are satisfied that the verdict was-not so clearly against the weight of evidence upon this question as to justify a reversal of the judgment.
This leaves for consideration on this branch of the case the question as to-the validity of the settlement between the parties. After the plaintiff’s claim had matured the secretary of the defendant had an interview wúth her husband, and subsequently with her, which resulted in his paying her the sum off $500, in her giving a receipt in full for her claim under this certificate, and,
The appellant also contends that the amount of the recovery was excessive; that by virtue of its by-laws, made subsequent to the issuing of the certificate in suit, the plaintiff should have received only five-sixths of the amount of the verdict rendered, which was for the amount of one full assessment. On the motion for a new trial herein the learned trial judge thoroughly examined this question, and delivered a full and exhaustive opinion thereon, in which we concur. We think his conclusion, that the plaintiff was entitled to recover the amount of one full assessment, instead of five-sixths of that amount, was correct.
On the trial Dr. Stowell, the son-in-iaw of the decedent and the husband of the plaintiff, who was called as a witness for the plaintiff, was permitted to testify as to what occurred between the decedent and Dr. Wolcott. This evidence was objected to upon the ground “that the witness was incompetent, under section 834.”
We have examined all the other exceptions of the defendant to the admission or rejection of evidence to which our attention has been called even in
Hardin, P. J., concurs.
This section prohibits physicians from disclosing information obtained while attending a patient in a professional capacity.
Concurrence Opinion
I concur, except I think the recovery should be limited to five-sixths of the amount.