94 N.Y.S. 758 | N.Y. App. Div. | 1905
The action was brought to recover the'sum of $1,000 upon a> policy of life insurance issued by the defendant on the life of Harry Joseph Valentini in .which 'the plaintiff, his mother, was named as' beneficiary. The complaint averred the-making of the policy, a copy-of which was attached to and made a part of the complaint, alleged compliance with its terms and conditions, the death of the insured, demand of payment, and refusal on the part of the defendant to pay. The defendant alleged, inter alia, a breach of warranty in answers given to questions propounded to the. insured at the time, of making application for the policy of insurance. The answers iu
“ 4. The following is the name of the physician who last attended me, the date of the attendance, and the name of the complaint for which he attended me. Dr. Goodwin; Rheumatism, 1898.
“ 5. I have not been under the care of any physician within two years, unless as stated in previous line.”
Whether there was a breach of warranty on the part of the insured in giving these answers presents the only question involved upon this appeal. Upon the trial the plaintiff introduced the policy of insurance, and proved the filing of the proofs of death and the non-payment of the policy. This proof was given by the plaintiff, who was the only witness called upon the trial. The defendant did not contest any of the matters to which the plaintiff testified and which established, prima facie, her right to recover. The defendant upon cross-examination attempted to establish by the witness that there had been a breach of warranty in the answers as above quoted. In other words, instead of cross-examining the witness, it entered upon proof of its affirmative defense to the enforcement of the policy. In this respect, over the objection and exception of the plaintiff, the defendant was permitted to ask leading questions and draw from the witness several conclusions upon material matters. Very little, if any, of such examination was proper as cross-examination of anything to which the witness had testified. As the matter related solely to the defendant’s affirmative defense, the witness in this respect became the witness of the defendant, and the testimony which she gave is to-be weighed in the determination of this appeal as affirmative evidence introduced by the defendant to establish its defense.
The policy bore date June 19, 1901. The examination of the witness by the defendant tended to disclose that some time in 1898 or 1899, the date of which is nqt given, the witness consulted Dr. Bishop about getting some medicine' for her son (the insured); that she went to Dr. Bishop’s office a number of times for that purpose and, after seeing him, she took her son, the date of which does not appear ; and that some time in 1899, but on what particular date is not made to appear, the insured, her son, went alone to see Dr,
It has been held that answers to similar questions will not be construed as a breach of warranty as matter of law, unless it appears as matter of fact that the answer was false and related to a material question. Thus in Edington v. Mut. Life Ins. Co. (67 N. Y. 185) certain questions in the application for insurance were as follows: “ How long since you were attended by any physician ? For what diseases? Give name and residence of your usual medical
In Genung v. Met. Life Ins. Co. (60 App. Div. 424) the answer to the 4th question involved in this appeal, which is the first above quoted, was the subject of examination, the witness having answered that he was last under the doctor’s care for la grippe in 1895,; and it appeared that within two. years he had been treated by another physician. The court said : “ Dr. Conklin testified that he had treated the insured in 1896, and again in January, 1899, but he was not very certain about the matter, and it was in evidence that the treatment was merely for a slight indisposition, a cold, which did not take the insured from his business. He had come into the house from his stores, according to the plaintiff's version of the matter, where the doctor was attending the family for la grippe and had been given some medicine for a cold. Under the authorities this does not constitute a breach of the warranty.”
In Cushman v. U. S. Life Ins. Co. (70 N. Y. 72) the claimed breach was an answer in the negative to a question, had the insured “ ever had disease of the liver ? ” It was testified to by a physician that before the making of this answer he had attended the insured in 1870, in 1871, before the policy, and in 1872, after the policy was issued, and again in 1873, in his last illness; that he then had congestion of the liver and died of acute congestion of that organ. The court held that the testimony failed to establish
Applying these rules of law to the facts of this case it is manifest that a breach of warranty was not established as matter- of law. Assuming that the attendance by Dr. Bishop was within two years of the time when the answers were given, yet it was not made to appear that the assured was afflicted with any disease which called for medical attendance, or that it was other or different than a mere fear engendered in the 'mind of the mother that the son was in need of some medical attendance. It is made - affirmatively to appear that the trouble at the most was a slight nervous twitching which did not interfere with the physical vigor of the insured or with his ability to attend to his business. The purpose of the question and answer was to inform the defendant as to the physical condition of. the applicant arid his probable duration of life, and before the court is justified in holding that there is a breach of warranty, it must appear that attendance by a physician had been for some substantial disorder and not for a mere functional and temporary indisposition. This the evidence failed to establish, and the court was not, therefore, justified in determining the question as matter of law.
The court also committed error in permitting, over the objection and exception of the plaintiff, an answer to the following question : “ Of course your Son was afflicted at that time and needed medical attention \ ” To which the witness answered “Yes.” This was clearly , error. It called -for the conclusion of the witness upon a vital point in the case. The objection raised the precise. question. As we have seen, upon this subject the witness was the defendant’s; it was engaged in establishing its defense, -and the conclusion given by the witness tendfed directly to settle the issues in favor of the defendant, and-that without the intervention of either the court or jury. The witness was not qualified to speak as to the need of the insured of medical attendance; and, so far as she testified to facts, there is nothing to show that he was in need of such attendance at the time when she first called upon Dr. Bishop or at any other
Upon redirect examination the witness testified that her son was in business up to the time lie died. The plaintiff was asked: “ Did he attend his business regularly ? ” Objection was interposed as irrelevant and immaterial. The objection was sustained, and plaintiff excepted. The question was proper and the answer should have been permitted. It bore directly upon the question as to whether the insured was suffering from any disease or in need of medical attendance at the time when it is claimed Dr. Bishop attended him. It tended directly to rebut the evidence which the defendant deemed essential, that medical attendance upon the insured was necessary.
. It follows from these views that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event. The appeal from the order is dismissed, without costs, as the appeal from the judgment is all that was necessary to present the question.
O’Brien, P. J., Patterson and McLaughlin, . JJ., concurred; Ingraham, J., dissented.
Appeal from order dismissed, without costs, judgment reversed, new trial ordered, costs to appellant to abide event.
