
    Doty v. New York State Mut. Ben. Ass’n.
    
      (Supreme Court, General Term, Fourth Department.
    
    February 11, 1890.)
    1. Life Insurance—False Representations—Province of Jury.
    An action on a policy on the life of plaintiff’s husband involved the issue whether the insured had made false statements and concealed facts in relation to his health. Defendant’s witnesses testified that before the application was made the applicant was afflicted with various ailments. Defendant also proved plaintiff’s oral and written admissions that her husband spit blood; that his health had entirely given out; and that he had contracted chronic diarrhoea, which was followed by epileptic fits, which resulted in general debility, and caused his death. It further proved declarations of the insured that he had bad chronic diarrhoea, and other ailments. Plaintiff denied making the oral admissions, and testified that she did not know the contents of the papers signed by her, and containing the written admissions. She also testified that she had occupied the same room with her husband for upwards of 15 years, and to the time of his death, and never knew of his having the alleged diseases; that his health was good; and that he had attended to his business substantially all the time, except when he had some slight indisposition, until his last sickness. Several other witnesses testified that they had known plaintiff’s husband, and had been with him more or less, and had never observed indications of any illness or disease. Field, that the question was properly submitted to the jury, and that a verdict for plaintiff would not be disturbed.
    2. Same—Instructions.
    A charge that if the applicant had had any of the diseases alleged in the answer, or had had any severe illness or injury, or his general health had not been good, or that he had concealed any of the facts mentioned in the answer, then the certificate was void, and plaintiff could not recover, is sufficient, without taking up each particular disease, on defendant’s request, and charging in regard to it, both as to warranty and concealment.
    3. Same—Mutual Benefit Associations—Actions at Law.
    An action at law is maintainable on a certificate of life insurance issued by a mutual benefit association. Following O’Brien v. Society, 22 N. E. Rep. 954.
    4. Same—Pleading—Admissions.
    Where the complaint alleges that plaintiff demanded of defendant the amount due her under the certificate, which she is informed and believes amounts to $3,000, the failure to deny such allegation must be taken as an admission that that sum is due on the certificate, unless it is invalid for reasons stated in the answer.
    Appeal from, circuit court, Onondaga county.
    Action by Clara L. Doty against the New York State Mutual Benefit Association. Judgment was entered in favor of plaintiff upon the verdict of a jury. Defendant appeals.
    Argued before Hardin, P. J., and Martin and Merwin, J.T.
    
      
      T. K. Fuller, for appellant. Isaac D. Garfield, for respondent.
   Martin, J.

The recovery in this action was founded on a certificate of membership issued by the defendant on the 8th day of September, 1884. It was in the nature of a policy of insurance upon the life of Chauncey E. Doty, and payable on his death to the plaintiff, who was his wife. None of the allegations of the complaint were controverted by the answer, and therefore were taken as true. The only issues in the case were based on the allegations in the answer that Chauncey E. Doty made false statements in his application for such certificate of insurance, and that he concealed facts in relation to his health which tended to deceive the defendant. Among others, the following questions were contained in the application, and answered by the applicant as follows: “Has the applicant had spitting of blood? No. Has the applicant had cough? No. Has the applicant had hemorrhage of any kind ? No. Has the applicant had bronchitis? No. Has the applicant ever had any severe injury or illness? No. Is the applicant subject to habitual cough or expectoration, difficulty of breathing, or palpitation of the heart? No. Is the applicant now in good health? Tes. And has general health been good? Tes. Has applicant ever been under medical or surgical treatment for any affections not specified above? No.” The defendant alleged in its answer that the applicant’s answers to the foregoing questions were untrue, in that prior to the time when said application was signed, and such contract of insurance made, he had had spitting of blood, cough, hemorrhage, bronchitis, severe illness resulting from hemorrhage, was subject to habitual cough, expectoration, and difficulty of breathing, was not in good health, his general health had not been good for a long time prior to such application, and said applicant had been under medical treatment for affections not specified in his medical examination, to-wit, for chronic diarrhoea, with which he had been afflicted for 17 years. It was also alleged therein that said assured when he made such application concealed facts tending to deceive the defendant, as follows: That he concealed the fact that he had been afflicted with chronic diarrhoea for about 17 years, and that he had been attacked with hemorrhage about June, 1883, and was laid up therefrom 3 or 4 months, and was treated therefor by a physician other than those named in his medical examination; and concealed the fact that his health had been so seriously impaired that he had been unable to attend to his business, and that he had a hacking cough for a long period, and that by reason of ill health he had been unable to work.

On the trial the defendant called several witnesses, whose testimony tended to show that before such application was made the applicant had had “a dry hacking cough;” was “short-breathed;” that he “looked pale and weak, and was tremulous;” that in 1862, while in the military service of the United States, he was in a hospital for two or three weeks; and that he had some trouble with his kidneys. The defendant also proved the plaintiff’s oral or written admissions to the effect that in May, 1884, her husband spat blood; that in November, 1884, his health had “entirely given out;” and that in February, 1885, she stated that during his service in the army he contracted chronic diarrhoea, which was followed by epileptic fits, which resulted in general debility, and caused his death. The defendant was also permitted to prove the declarations of the plaintiff’s husband that he had had chronic diarrhoea, epileptic fits, bilious colic, mercurial poisoning, and pneumonia. On the other hand, the plaintiff testified that she made none of the oral admissions testified to by the witnesses for the defendant; that she did not know the contents of the papers signed by her containing the written admissions introduced by the defendant which was made in February, 1885, after her husband’s death; that the statement in November, 1884, was made after the certificate in question was issued, and during the last sickness of her husband, and related to his condition at that time. She also testified, in substance, that she lived with her husband, and occupied the same room with him, from 1868 until the time of his death; that she never knew of his having chronic diarrhoea, of his spitting blood, or having a cough, or bleeding at the lungs; that his health was good; and he attended to his business substantially all the time, except when he had some slight indisposition, until the occasion of his last sickness. She also called several other witnesses, who testified that they had known her husband in his life-time, and had been with him more or less, and that they had never observed that he had a cough, was short-breathed, or that he had indications of any illness or disease. This evidence, if believed, tended to show quite conclusively that the allegations of the defendant’s answer were wholly untrue. The question whether the plaintiff’s husband had had any of the alleged diseases or ailments, and therefore whether he had made any of the false statements, or concealed any of the matters alleged in the answer, was submitted to the jury, with the instruction that, if any of the statements made in the application were untrue, that fact “voided” the policy, and relieved the defendant from any liability by reason of its issue. Upon the evidence, and under such instructions, the jury found for the plaintiff. We are asked on this appeal to reverse the decision of the jury, on the ground that the verdict was not sustained by the evidence. It seems that many, if not all, the declarations made by the plaintiff’s husband were inadmissible for the purpose of proving that he had had the diseases which in his application he denied. They may, however, have been admissible to show that he had knowledge of the existence of such diseases as were otherwise proved. Swift v. Insurance Co., 63 N. Y. 186; Edington v. Insurance Co., 67 N. Y. 185; Dilleber v. Insurance Co., 69 N. Y. 256. But, be that as it may, still there was a conflict in the evidence upon the question whether the plaintiff’s husband had had the diseases and ailments alleged in the answer, and the court would not have been justified in refusing to submit that question to the jury. Yor do we think the verdict so manifestly against the weight of evidence as to justify us in setting it aside for that reason.

The appellant also contends that the court erred in refusing to dismiss this action, on the ground that it could not be maintained in its present form, but that the plaintiff’s remedy was by mandamus. It has been several times held by this court that an action, in form like the present, could be maintained upon such a certificate. Freeman v. Society, 42 Hun, 252; Fulmer v. Association, 12 N. Y. St. Rep. 347, 349; Hankinson v. Page, 12 Civ. Proc. R. 279, 288; O'Brien v. Society, 4 N. Y. Supp. 275, affirmed 22 N. E. Rep. 954; Peck v. Association, 5 N. Y. Supp. 215. Moreover, in the case at bar the plaintiff alleged that she demanded of the defendant that it pay her the amount to which she was entitled by said certificate, which she was informed and believed amounted to the full sum of $3,000. This allegation, not having been denied, must be taken as true. It must, we think, be regarded as an admission by the pleadings that there was that sum due on such certificate, unless it was invalid for the reasons stated in the defendant’s answer.

The appellant asked the court to charge as follows: “If the jury find from the evidence that Chauncey E. Doty had had chronic diarrhoea, as stated by him in his application for pension, and in his special examination before Special Examiner Patterson in June, 1884, the plaintiff cannot recover. The Court. The jury are men of common sense. While a surgeon or physician or anybody else may swear to a given state of facts, if those facts, so sworn to, do not commend themselves to the judgment of a jury of intelligent men, they will not be controlled by them. ” The court had previously charged as follows: “By the terms of this agreement between the company and the applicant, his application to become a member of this company, and his right to this certificate, was made a part and parcel of that agreement; and between the parties it was stipulated that, if any answer to any question which was put to Ghauncey Doty in that application was untrue, that fact voided the policy, and relieved the company from any liability by reason of its issue. The law is well settled, as has been suggested in your presence, that in contracts of this nature, where the statement and representation form and in character are a warranty as to their truth, that the falsity of any one statement thus made, whether the statement is a material one or not, or whether it at all affects the liability of the parties beyond the fact that it is untrue, vitiates the policy and discharges the company from its liability on it. To this rule I suggest another here, which you will bear to your jury-room, that it is provided that if there was a concealment of any material fact by the assured, that he ought to have disclosed to the party issuing the policy, that that shall vitiate the policy. The difference is that under a warranty it is not important whether the untrue statement is material. In the concealment the fact must be material, in order to relieve the party. * * * If you find the statements by Doty to the assurers in the application were untrue, and that this certificate was issued on the faith of those statements, upon that finding you have but one duty to perform. That duty is to find a verdict in favor of the defendant, thus declaring them not to be liable upon this paper. ” If what was said by the court should be regarded as a refusal to charge as requested, still we are of the opinion that the court, having charged fully upon that question, was not required to charge the proposition as requested by the appellant’s counsel. He had already, in effect, charged the jury that if they found that the applicant had any of the diseases mentioned in the defendant’s answer, or that he had had any severe illness or injury, was not then in good health, or his general health had not been good, or had concealed any of the facts mentioned therein, that the certificate was void, and the plaintiff could not recover. We think, after the court had thus fully instructed the jury upon all the questions involved on the trial, it was not required, upon the request of the defendant, to take up each particular disease or ailment, and charge in regard to it, both as to warranty and concealment. We think it was not error to decline to charge as requested, and the judgment should not be reversed upon that ground.

The appellant also requested the court to charge “ that if the jury find from the evidence that the applicant concealed the fact which he testified to, that he had suffered from mercurial poisoning, as stated in his testimony, such concealment was the concealment of a material fact, and avoids the policy or certificate. ” To this request the court replied: “ Gentlemen: You have heard the different diseases which it is alleged were concealed. It has been read to you from the answer. I will charge you as to those diseases mentioned in the answer, except the concealment in relation to the mercurial poisoning is not in the case. ” This was excepted to by the defendant. It will be observed that there is no allegation in the answer alleging the concealment of mercurial poisoning. Moreover, it is extremely doubtful, to say the least, whether there is any evidence in the case showing that the applicant had suffered from mercurial poisoning. There is none, unless his admissions made in seeking to obtain a pension are evidence against the plaintiff in this action. Nor do we think it can be held that the court refused to charge as requested, as the request was substantially complied with.

The appellant also claims that the jury were improperly influenced by the remarks of the court during the trial of this action; that such remarks were calculated to, and undoubtedly did, bias the jury, and prejudice them against the defendant. An examination of the appeal book in this ease fails to disclose the facts as claimed by the appellant. We have been unable to find any unjustified statement made by the court which would tend to prejudice the jury in the case against the defendant. The appellant also contends that there are 65 rulings made by the court, on the admission or rejection of evidence, which were erroneous. It is impracticable to discuss each of those rulings separately. We must therefore content ourselves by stating that we have examined each of the rulings in the case, and have found none that disclose error, or would justify a reversal of the judgment. We think the judgment should be affirmed. Judgment and order affirmed, with costs. All concur.  