
    Delamater v. Prudential Ins. Co.
    
      (Supreme Court, General Term, Third Department.
    
    May 27, 1889.)
    1. Insurance—Proof of Loss.
    "Where the husband of insured made proofs stating that he claimed as husband, and afterwards sued on the policy as administrator, and it does not clearly appear whether he had been appointed administrator at the time of making the proofs, they are sufficient, as he may adopt the proofs which he made as husband.
    2. Same—Conditions of Policy.
    It appeared that proofs were prepared in the office of a local superintendent of the company, by the assistant superintendent, and mailed to the company’s principal office; that a letter was received from the company’s attorney acknowledging the receipt and acceptance of proofs and expressing the intention of contesting the claim; and that an affidavit of the fact of death was sent to the company. It was shown that the agent, when the amount of the policy was demanded, denied liability, and refused to pay it, on the ground of suicide. Meld, that it would not be held as matter of'law that the company did not waive a condition of the policy requiring presentation of proofs at the office of the company, or that such presentation was not made.
    8. Evidence—Documents—Proof of Loss.
    Testimony of one who had received a letter that he sat for two hours hunting-through the pigeon-holes where he kept all his letters; that he looked half a dozen times, hut could not find it; that he thought he had torn it up and thrown it into- v the waste-basket; and that he also looked in other places,—is sufficient foundation for evidence of the contents of the letter, though he also testifies that it may yet-be in the pigeon-holes with the others.
    4. Same—Proof of Handwriting.
    On the issue of suicide of an insured, a card found in the hotel where deceased was-found dead, and purporting to he signed “Avery and Jennie, ” the latter being deceased’s given name, is inadmissible, unless the handwriting be proved.
    5. Trial—Striking Out Testimony.
    It is not error to strike out, on motion of one party, irresponsive answers of a. witness, though no objection to the questions were made by the moving party before the answers were given.
    Appeal from Ulster county court.
    Action by Garrie H. Delamater against the Prudential Insurance Company of America for the amount of an insurance policy issued on the life of Jennie-B. Delamater. Insured was found nearly dead iñ a New York city hotel, and it was claimed by the company that she committed suicide, as there was evidence that she died from the effects of morphine. Bor this reason the agent of the company denied liability, and refused to pay the policy when demanded. Biero, the father of deceased, testified, in relation to the letter from Ward, the company’s attorney, that he sat for two hours searching through the pigeon-holes where he kept all his letters, and where there were then 200-letters; that he looked, not once, but half a dozen times; that he thought hell ad torn it up and thrown it into the waste-basket; and that he also looked’ in two other places. He testified on cross-examination that he could not say positively that the letter was not in the pigeon-holes, but that it might be there-still. The card introduced in evidence was found in the room where deceased, was found in the hotel, and there was no proof of the handwriting thereon. Judgment was rendered for plaintiff,' and defendant appeals.
    
      S'. E. Ackerman, for appellant. F. A. Westbrook, for respondent.
   Learned, P. J.

There is no doubt that the suicide of the deceased would be a defense. The difficulty is that it was a question for the jury whether or not she committed suicide. There is evidence which would support a verdict, in defendant’s favor, if the jury had so found. But they have found for the-0 plaintiff, and the evidence is not such that we can set aside their verdict as-against the weight. The learned judge who heard the case, and could consider this point with the advantage of having heard the witnesses, denied the motion. It is true, also, as defendants claim, that the conditions of the policy require the presentation of proofs at the office of the company. But this is a condition for the benefit of the company, and they.may waive it. Anything" which reasonably can be understood by the claimant as a waiver of this condition may excuse his non-compliance. When, as in this case, the defendants believe that they have a good defense, such as the suicide of ther deceased, they may easily feel indifferent as to requiring formal proofs, and may thus induce the plaintiff to be negligent in presenting them. If they have thus misled him, they cannot on the trial insist on this condition. In this case it appears that proofs were prepared in thg office of the superintendent of the company at Rondout, and by the assistant superintendent, and were by him mailed to the company’s principal office. These were • produced. There is evidence, also, of a letter (now lost) received from the-company’s attorney, acknowledging the receipt and acceptance of proofs, and expressing their intention of contesting the claim; also of an affidavit of the fact of death sent them. But the defendant’s objection appears to be that in these proofs the present plaintiff stated that he claimed as husband, while he' now sues as administrator. Whether he had at the time of making the proofs-been appointed administrator does not clearly appear in the printed case. Bow, the object of proof is to give information of the facts of death, and the circumstances under which it occurred. This information is obtained, who-ever gives it. We need not say that an utter stranger can make valid proofs. That case is not before us. Here the present plaintiff made them. He may adopt those which he made as husband. Wuesthoff v. Insurance Co., 107 N. Y. 580, 14 N. E. Rep. 811. On the facts the court could not properly" have held as matter oi law that the plaintiff had not complied with this con-dition. The charge of the court is not in the case, so that the question may have been submitted to the jury.

The defendant objects to the striking out of certain testimony of a physician, on the ground that the objection to it was not taken when the testimony was given. It is true that when a question is asked which is improper the opposite side should not wait until he finds out what the answer is before' he objects. Here, however, the plaintiff moved to strike out parts of an answer which were not responsive to the question asked by the defendant, and, although the motion was not made instantly, still the objection which the defendant makes, as above stated, is not good. The matter was substantially in the discretion of the court. The objection to the proof of the' contents of the letter from Ward to Fiero is not well taken. The evidence that the letter could not be found was sufficient. The extent of that kind of evidence is largely in the discretion of the trial court. The letter was material, because it was a statement that proofs of loss had been received. A certain card, purporting to be signed “Avery and Jennie,” was offered in-evidence, and excluded. To this exclusion defendant objects. The handwriting is not proved, and for that reason it could not be admitted. It is unnecessary to say whether, if the handwriting had been proved, the card would be admissible. We have no occasion to say whether the evidence would have brought us to the same conclusion as that to which it brought the jury. But it is familiar law, although often unwelcome to defeated litigants, that the jury are the judges of the facts. We have only to say that we find no legal errors "in this trial. Judgment and order affirmed, with costs.  