
    Cram et al. v. Equitable Acc. Ass’n of Binghamton.
    
      (Supreme Court, General Term, Fifth Department.
    
    October 23, 1890.)
    Mutual Benefit Insurance—Breach of Contract—Damases.
    Where a mutual benefit insurance company has broken its contract to pay the heirs of a deceased member a sum “not exceeding $1,000, realized on an assessment’’ • to be levied on the surviving members, the measure of damages of the heirs is the amount which would have been produced by an assessment properly levied; and, in the absence of evidence on that point, it is error to instruct that the jury should find in favor of the heirs for the full amount of the $4,000.
    Motion for new trial on exceptions.
    Action by Harry D. Gram and others,-by their guardian, against the Equitable Accident Association of Binghamton, for failure to levy an assessment on the deatli of Harry D. Cram, a deceased member of defendant. There was a verdict in plaintiffs’ favor, and defendant now moves for a new trial on a case and exceptions ordered to be heard in the first instance at the general term.
    
      Mr. Jewell, for plaintiffs. D. Murray, for defendant.
   Dwight, P. J.

The action was on a certificate of membership of the defendant association, issued to one Harry D. Gram, since deceased, by which in the event of the death of the member, occasioned in a manner specified, the ■defendant undertook to pay to his heirs “the principal sum not exceeding 44,000, realized upon an assessment in accordance with the provisions of section 1 of article 6 of the by-laws, as printed on the back of this certificate;” and the section referred to prescribed the time and mode of making such assessment. The death' of the member occasioned in a manner specified, the service of notice of the death as required, and-of due proofs of loss, were alleged and proved, and were not disputed. The plaintiffs also alleged and proved that after the expiration of the time prescribed by the by-laws the plaintiffs duly demanded of the defendant that an assessment be made for the purpose of paying the loss, but that the defendant refused to make such assessment. There was no allegation in the complaint nor evidence on the trial of what amount, if any, would or might have been realized from such an assessment if one had been made.

. At the close of the plaintiffs’ case, the defendant moved.for a nonsuit on the ground of the lack of evidence of the character last mentioned, and that motion was renewed and a motion made for the direction of a verdict for the •defendant at the close of the evidence on the same ground; all of which motions were denied, and the defendant excepted. These rulings of the court were undoubtedly correct, and the several exceptions of the defendant thereto unavailing, because upon the undisputed evidence (the validity of the certifi-. •cote being, for this purpose, conceded) the defendant had been guilty of a breach of its contract to make an assessment, and the plaintiffs were entitled to recover at least nominal damages.

But the court, having submitted to the jury to find upon another question •of fact which will be noticed later, instructed them that if they found in favor of. the plaintiffs, they should find for the full amount of $4,000. To this instruction the defendant excepted, and the exception was doubtless well taken and must entitle the defendant to a new trial. Whatever the evidence short •of proof of an amount actually realized on an assessment, the question of the measure of damages must have been a question for the jury, O'Brien v. Society, 117 N. Y. 310, 22 N. E. Rep. 954. In the case cited the court say:. “The plaintiff was therefore entitled to recover something; and what was the measure of his damages? Just what he lost by the defendant’s breach of its ■contract. He was entitled to have an assessment made and collected, and the proceeds thereof paid to him. What was the contract worth to him? and what would the assessment have produced for him? It was incumbent upon •the plaintiff to give evidence which would enable the jury to answer these -questions.” In that case the evidence, which was held sufficient for the purpose, is not disclosed in the case as reported, but by reference to the record we find that it consisted of the last annual report of the defendant to the insurance department showing, among other things, the number of certificates ■outstanding in each class, and, consequently, the number of persons liable to .assessment for a given amount, to pay the plaintiffs’ claim. In this case, on the other hand, there was, as we have said, no evidence showing or tending to show how much an assessment made in accordance with the by-laws of ihe defendant would have produced for the benefit of the plaintiffs, and therefore no evidence upon which the jury could have based a verdict in their favor for .more than nominal damages. O'Brien v. Society, supra; Martin v. Association, 9 N. Y. Supp. 16, and the cases there cited.

The other question in the case, already referred to, arises upon a statement in the application in writing for membership made by the deceased. The un•dertaking of the defendant contained in the certificate was by its terms subject to several provisions and conditions, among which were “the express .agreement that all the statements and representations contained in the application for this certificate are warranted to be correct and true in all respects; and if this certificate has been * * * obtained through misrepresentation, * * * then the same shall be absolutely null and void.” The application was in evidence; it contained, among other questions, to which full and explicit ahswers were required to be given, the following: “ (4) Occupation? If more than one, name them-all, ”—which was answered: “Oil producer.” Also the,question: “State the duties required of you under •-that occupation,”—which was answered: “Supervising only.” The answer of the defendant averred that this statement or representation was untrue, and • that the breach of the warranty in this respect rendered the ceitificate null and void. The undisputed evidence on this branch of the case was to the effect that the insured had a small lease of oil lands upon which he had two ■ or more wells which he managed and operated himself, doing every part of • the work alone, which .could, be done by one man; that he tended his own boilers, ran his own engine, pumped his own wells, “pulled” his wells, and made his own repairs without assistance, except upon extraordinary occasions. Some testimony was given, first on the part of the plaintiffs under the defendant’s objection and afterwards on the part of the defendant, for the purpose of showing what was meant or understood in the oil country by the terms “supervisor” or “supervising” of oil wells or térritory. It may well be questioned whether expert testimony was admissible to explain the meaning of terms of such common use and plain significance as those in question; but, being admitted, it proved nothing beyond what was apparent before and might as well have been conceded, namely, that the insured was an oil producer, supervising his own business. The fault of his application was that it represented that his duties in connection with that occupation were those of “supervising only.” This representation was manifestly incorrect. He did not merely, or only, supervise the work on his oil lease; he did the work with his own hands. So that when he was asked what duties belonged to his-occupation as an oil producer, he could not truly answer, “Supervising only.” That the representation was material to the risk admits of no doubt. The hazard is manifestly different in the cases of two men engaged in the production of oil,—the one in the capacity of a supervisor or overseer only, and the other as an actual operative in all branches of the work; at once the fireman, engineer, pumper, “ well-puller, ” and repairer of machinery. It was therefore clearly error for the court to submit to the jury, as it did, the question whether the representation mentioned was true or false. The evidence on the subject, being undisputed and capable of but one construction, demonstrated that the representation was false in fact.

The question is presented on this motion by two exceptions taken by the defendant; the one an exception to the denial of the defendant’s motion for a nonsuit made at the close of the evidence on the ground that the undisputed evidence showed that the statement in the application was false, and therefore the certificate was void; the other, an exception to the submission of the question to the jury. Both of these exceptions seem to have been well taken, and as well as the exception first considered to furnish good ground for the motion for a new trial.

Motion for a new trial granted, with-costs to abide the event.

Macombeu and Corlett, JJ., concur on the ground first stated.  