
    MYERS v. COMMERCIAL TRAVELLERS’ MUT. ACC. ASS’N OF AMERICA.
    (Supreme Court, General Term, First Department.
    March 15, 1895.)
    Evidence—Statements oe Third Persons.
    In an action on an accident insurance policy, it is error to permit defendant, on cross-examination of a witness who had testified as to the appearance of the body of the assured soon after death, but who was not connected with the assured or plaintiff, to ask if he did not state that he did not think that plaintiff bad no claim against defendant; and the error is not rendered harmless by the answer of the witness that he did not remember making such statement
    Appeal from circuit court, New York county.
    Action by Juliet M. Myers against the Commercial Travellers’ Mutual Accident Association of America on a certificate of membership. From a judgment dismissing the complaint, entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals. Reversed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.
    Wm. B. Hurd, for appellant.
    M. W. Van Auken, for respondent.
   PARKER, J.

Defendant in November, 1889, issued to Egbert •G-. Myers a certificate of membership, by which, among other things, it agreed that, in the event of his death by external, violent or accidental means, it would pay to this plaintiff the sum represented by the payment of $2 by each member of the association, but in no event to exceed the sum of $5,000. On the evening of July 26,1892, Mr. Myers was found dead, submerged in nine feet of water, in the swimming bath of J. A Payne, at 214 South Broad street, Philadelphia. The deceased had gone to Philadelphia from New York that morning, and was apparently in robust health. The bath was a pool 30 feet wide by 100 feet long. The sides and bottom were of stone and cement. The water was from 3 to 9 feet deep; and there were spring boards and ladders from which swimmers could jump and dive, and ropes were fastened on the sides at a distance of 3 feet from each other, to which swimmers might cling for rest. A few minutes before 8 o’clock on that evening Myers entered the bathhouse, and at a quarter before 9 he was found" dead at the bottom of the pool. There were 50 or 60 persons in the water with him, which was at blood heat. ’ Plaintiff’s theory of the case was that the insured, while swimming, dived in the water, and struck some hard substance, at the side or bottom of the pool, with his head, rendering him unconscious, during which he drowned. On the other hand, defendant endeavored to establish that the insured had heart disease, and that his heart ceased to act while he was supporting himself by the rope suspended above the water, where he was last seen alive. Plaintiff in support of her theory produced laymen, who testified that his health always seemed to be good; that he was but 23 years of age; had not had since childhood any sickness, except trifling stomach or throat troubles; his weight was 149 pounds; he was 5 feet 8 inches in height; was a rosy-cheeked, ruddy-complexioned man, and always had been fond of and was active in athletic sports, which with him included base ball, lawn tennis, boating, and swimming. She called two physicians, one of whom had doctored him for tonsilitis about a month before his death. He testified that on that occasion he examined his heart, and found it apparently normal, with no indication of organic disease. Eight days before his death he was accepted as a first-class risk by the Massachusetts Life Insurance Company, an examination being made by Dr. William Gray Vermilye, examiner in chief of the company; the result being that he passed the deceased as a man of more than ordinary good health, with a “pulse of seventy, soft and regular, who had no heart murmurs, and in whom there was no indication of heart disease, and whose urine was normal.” Against this evidence the defendant presented the testimony of Dr. Sidebotham, who made the autopsy upon deceased. He testified that there was no water in the stomach; none in the lungs; that the left ventricle of the heart was hypertrophied; the walls of the heart soft, aortic opening admitting not quite two fingers, and valve thickened; that he discovered nothing to indicate that cause of death was drowning, and gave it as his opinion that death was caused by hypertrophy of the heart, with an aortic stenosis. Plaintiff further introduced testimony tending to show that a short time prior to his entering the water there was no lump or abrasion on his forehead or temple, but when his body was taken from the water there was a lump or abrasion. Whether there was a lump on his forehead when he was discovered at the bottom of the pool was regarded by both parties as an important circumstance, in view of the character of the evidence to which we have adverted. Defendant’s counsel conducted his side of the case throughout the trial on the theory that there was no such injury discovered. The plaintiff called Joseph G. Leggett, who testified that he had known the dead man for 12 or 14 years, and was his friend; that after his death he saw him first at an undertaking establishment on Eighth avenue, and that there “was then an abrasion on his head, on the temple.” On cross-examination the witness said he did not know Dr. Lyon, to his knowledge, but that he had been called upon within a few days after the death by a gentleman who made inquiries of him touching the death of Myers. Then this question was put:

“Q. Did you tell Dr. Lyon in one of these interviews that you had a talk with J. Weston Myers the night before, and that you did not think they had any claim against this defendant company? (Objected to as incompetent and irrelevant. Objection overruled. Plaintiff excepts.) A. I don’t remember that. I wouldn’t take my oath that I didn’t, but X have absolutely no recollection of it.”

The witness had no interest in the controversy. It had not then been made to appear, nor was it afterwards, that he had any right to speak for or represent this plaintiff, and clearly what witness thought or said of the general merits of the claim was neither competent nor relevant. The defendant’s brief puts forward, as the best answer to be made to an attack upon this ruling, that “it was competent for defendant to show any admission made by plaintiff or by her son or the witness Legett, if followed by evidence connecting her with it; such testimony was also relevant. The witness’s answer, however, rendered evidence as to plaintiff’s connection with such admission unnecessary.” It will be observed that this answer concedes its incompetency at the time it was admitted, but says, in effect, that he could have cured the error if the answer of the witness had been such as to have made it necessary. In other words, he says: “If the witness had answered, ‘Yes,’ it would have been-necessary for me to have shown plaintiff’s connection with the witness; but, as the answer was of no consequence, it was not necessary for me to do so.” We do not agree with him as to the effect of the answer, but think it may have been almost as damaging as though the answer had been in the affirmative. The reply, “I don’t remember that; I would not take my oath that I didn’t, but I have absolutely no recollection of it,”—may not unlikely have persuaded some members of the jury that he had made such a statement to Dr. Lyon, and that such was the fact. Certainly its tendency must have been to raise a doubt in the minds of some of the jury whether he did not say it, and even that doubt may have had an important bearing in the disposition made by them of the issues submitted. As we cannot say that this error did not result in harm, it cannot be disregarded. The judgment should be reversed, with costs to the appellant to abide the event. All concur.  