
    Ida J. Breese, by Robert C. Breese, her Guardian ad Litem, Respondent, v. The Metropolitan Life Insurance Company, Appellant.
    
      Life insurance — in whose favor it maybe — a granddaughter has an insurable interest — temporary ailment of the insured — burden ofps'oof— afraudulent alteration of a paper in defendant’s possession need not be pleaded by the plaintiff—continuance after majority of an action begun by an infant by his guardian ad litem.
    A person may insure his life in favor of one having no insurable interest therein, and who consequently could not, on his own application, procure a policy of . insurance on such life.
    
      Semble, that a granddaughter has an insurable interest in the life of her grandfather.
    A temporary ailment from which a person whose life is insured recovers, cannot be considered a disease within the meaning of a warranty in the life insurance policy.
    In an action upon a policy of life insurance the burden of showing the brqach of a warranty concerning the insured’s condition of health at the date of the application for the policy, is upon the defendant.
    Where the defendant in an action produces, on the trial thereof, as a defense thereto, a paper executed by the plaintiff which, since its execution, has been in the sole possession of the defendant, the plaintiff is not precluded from showing that the paper has been fraudulently altered because such alteration has not been pleaded by him.
    An action begun by a guardian ad litem on behalf of an infant, which is still pending when the infant attains his majority, should, by a suggestion entered on the record, be continued in the name of the infant.
    Appeal by the defendant, The Metropolitan Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on the 21st day of May, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of May, 1898, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frank S. Coburn, for the appellant.
    
      Frank C. Cushing, for the respondent.
   Follett, J.:

This action was begun July 8, 1895, by the guardian ad litem of Ida J. Breese, now Ida J. Corbett, to recover on a policy of life insurance, issued by the defendant January 15, 1894, by which it agreed to pay $500 upon the death of William Robertson in case he died “ more than one year after the date ” of the policy. He died January 20, 1895. The name, of the person to whom the sum should be payable is not mentioned in the policy, but the first condition indorsed thereon provides: “ The company may pay this policy to either the executor or administrator, husband or wife, or any relative by blood, or lawful beneficiary, of the insured, and the production by the company of the policy and a receipt in full, signed by either of them, shall be conclusive evidence that all claims upon said company under this policy have been fully satisfied.”

The plaintiff when the policy was issued was nineteen years of age, and was an infant when the action was begun, but she became twenty-one years of age in January, 1896, and is now a married woman. An action begun by a guardian ad litem, which is continued after the infant becomes of age, should by a suggestion entered on the record be continued in the name of the real party in interest. (2 Barb. Ch. [2d ed.] 208; Mitf. P. & P. [6th Am. ed.] 124; 10 Ency. Pl. & Pr. 591, and cases cited; 1 Dan. Ch. PL & Pr. [6th Am. ed.] 78.)

No objection having been taken to the continuation of the action in the form in which brought, and the fact appearing upon the record that the plaintiff is of full age, the action may be continued in the name of Ida J. Corbett.

The premium on this policy was one dollar per week, which was paid by the plaintiff, who is a granddaughter of William Robertson, the insured.

The policy was issued upon an application divided into four parts, A, B, O and D. Subdivisions A and O were signed by the insured; subdivision B was signed by William H. Herrick, defendant’s agent; subdivision D was signed by Dr. .John D. Tripp, defendant’s medical examiner at Auburn. Subdivisions A and B were signed December 27, 1893, and the answers to the questions in those subdivisions were written with a lead pencil by William H. Herrick. Subdivisions O and D were signed December 28, 1893, and the answers to the questions in those subdivisions were written in ink by Dr. John D. Tripp. The policy contains this stipulation : “ In consideration of the answers and statements contained in the printed and written application for this policy, all of which are hereby made warranties, and are hereby made part of this contract,” etc.

Several defenses are set up in the answer, only five of which were litigated on the trial and relied on as defenses to the action.

First defense. That the answers to the 7th and 8th questions in subdivision A of the application were untrue. “ 7. When born ? September, 1835. 8. Age next birthday ? 59 years.” These answers were written with a lead pencil by William H. Herrick, and signed by the insured December 27, 1893.

Second defense. That the plaintiff is not the beneficiary under the policy. Paragraph 13 of subdivision A contains the following questions and answers: “ 13. Name, etc., of beneficiary, subject to provisions of policy applied for as to payment. Name? To his estate. Occupation? (No answer.) Relationship? (No answer.) Age? (No answer.)

Third defense. That the answer to one of the questions of paragraph 8 of subdivision 0 was untrue. 8. Has the life ever had any of the following complaints? Answer (Yes or No) opposite each. * * * Ulcer or open sores? No.” This answer was written in ink by Dr. John D. Tripp, the defendant’s medical examiner, and signed by the insured December 28, 1893.

Fourth defense. That the answer to the 9th question in subdivision C was untrue. “ 9. Is said life now in sound health ? Yes.” This answer was written in ink by Dr. John D. Tripp, the defendant’s medical examiner, and signed by the insured December 28, 1893.

Fifth defense. That the answers to questions 16 and 16a in subdivision 0 were untrue. “ 16. When last sick? 1890. 16a. Of what disease ? Muscular rheumatism.” These answers were written in ink by Dr. John D. Tripp, the defendant’s medical examiner, and signed by the insured December 28, 1893.

The age of the insured at the time the policy was issued was a question sharply litigated on the trial. The insured was born in Scotland; when he emigrated to this country does not appear. William J. Robertson, a son of the insured, testified that his father had seven children; that James was the eldest; that the witness was the fifth, and Margaret A. Breese, the mother of the plaintiff, was the sixth child. He testified that he was born in October, 1854, and would be forty-four years of age in October, 1898. The evidence in a general way was that the difference between the ages of the children was from two to two and one-half years. Margaret A. Breese, if two years younger than William J., was born, if he stated his age correctly, in 1856, and was forty-two years of age at the time of the trial. Margaret A. Breese testified that she came from Scotland when she was thirteen years of age, and married two years afterwards. The whole family seems to have been illiterate. The insured was a “ marksman,” unable to write his name. Margaret A. Breese was unable to write her name, or read writing, and read print with difficulty, and only in the Bible, which she never ventured to read aloud. She knew nothing about several of her brothers and sisters, whether they were living or dead. The family kept no record of births, marriages and deaths.

If the evidence of William J. Robertson was correct, the insured • must have been older than stated in the application, because if he was but fifty-nine when the application was made he became the father of James Robertson, his eldest child, at the age of ten years, which is incredible. On the other hand, if the evidence of Margaret A. Breese is correct, the insured became the father of James at the age of seventeen or eighteen years, which is not incredible. William J. Robertson and his Avife testified that the insured told them about six months before his death that he was seventy-six years of age. The plaintiff, Ida J. Corbett, and her mother testified that the insured frequently said that he was born October 15,1835. In subdivision B of the application, signed by the defendant’s agent,, appears the following: 5. Does the person appear older than age stated ? No.”

In subdivision 0 the following appears : “ 4. Age. Actual % .59. Apparent ? 59.”

These answers were written by defendant’s medical examiner. The medical examiner was the physician of the insured and had known him for some time. Under this state of the evidence the question of the age of the insured Avas one of fact and properly submitted to the jury. No exceptions were taken to the instructions of the court in respect to this defense.

Was the plaintiff the beneficiary named in the application ? The plaintiff testified that she was present when the application was signed, and that after the word “name” in the 13th question of subdivision A appeared the words “ Ida J. Breese.” William H. Herrick, defendant’s agent, who wrote the application, so testified. Dr. John D. Tripp, the defendant’s medical examiner, testified that when he examined the insured the ivords “ Ida J. Breese ” were written in the place where the words “ to his estate ” now appear; and he also testified that after completing the application he mailed it directly to the home office of the" defendant in the city of New York. The original application was produced on the argument, and it is apparent, as was conceded, that the answer had been changed from “Ida'J. Breese” to “to his estate.” When it was changed and by whom was an important question. The defendant’s agent testified that he did not make the change. On the contrary, the defendant’s superintendent and assistant superintendent of the Auburn agency testified that when tire application was first brought to their attention by William H. Herrick he was told that the defendant would not issue a policy payable to a granddaughter. Why it would not does not appear, except that this witness stated that it was in violation of section-14 of the superintendent’s manual, which is as follows: “ 14. A policy will not be issued in favor of a friend, non-relative, or other person not having a lawful insurable interest in the life insured. This means that the beneficiary must be dependent upon the insured for support, or that the insured is indebted to the beneficiary in an amount sufficient to justify the sum insured, or that the beneficiary has some other substantial pecuniary interest in the life insured.”

This rule does not prohibit the issuing of a policy, upon the application of the insured, payable to "one who has not an insurable interest in the life insured. It simply prohibits the issuance of a policy upon the application of and in favor of a person upon a life in which the applicant has no insurable interest. Under the law of this State a person may insure his life in favor of a jjerson who could not, on his "own application, procure an insurance on the same life.

Again, a granddaughter has an insurable interest in the life of her grandfather. (Loomis v. Eagle Life ds Health Ins. Co., 6 Gray, 396 ; Conn. Mutual Life Ins. Co. v. Schaefer, 94 U. S. 457 ; Warnock v. Davis, 104 id. 775 ; 1 Bacon Ben. Soc. & Life Ins. §§ 248, 250 ; Biddle Ins. §§ 187, 194.)

This ease has been twice tried, and the issue how, when and by whom the application was altered was sharply contested on the first trial. Then, as now, the evidence was that when the application was mailed to the defendant’s home office it contained the name of “ Ida J. Breese.” At the head of the original application appear the initials, in red ink, of the person who examined the application at the home office; and it should be remarked that though this defendant had notice that it was asserted by the plaintiff that the alteration was made after the application reached the home office, the person who originally examined the application at the home office was not called to testify to its condition when examined by him.

Again, Joseph Stackhouse was defendant’s superintendent at Auburn when the policy was issued, and testified that he called the attention of Agent Herrick to section 14 of the superintendent’s manual, and informed him that the company would not issue a policy payable to Ida J. Breese. The proofs of death were written by Stackhouse, and in those proofs Ida J. Breese is named- as the beneficiary. It appears from those proofs signed by Stackhouse that he kept a register of the policies issued. These proofs were sent about January 25, 1895, to the defendant, who retained them without raising any objection that Ida J. Breese was not the beneficiary in the application on file in its office. Under the state of the evidence it is not strange that the jury found that the alteration in the application was made by some person after it was mailed by the medical examiner.

The contention that the plaintiff could not show that the defendant, or some person in its interest, fraudulently altered the application after it was received by the defendant, without pleading the alteration, was determined when this case was before this court on the first appeal. (24 App. Div. 377.) I think it was never before contended that in case a defendant produces on the trial, as a defense to an action, a paper executed by the plaintiff, which had been since its execution in the sole possession of the defendant, the plaintiff might not show a fraudulent alteration of the paper without pleading the alteration •— a fact which the plaintiff could not know until the paper was offered in evidence. Under such a rule a plaintiff could not show that a paper offered in evidence by a defendant had been altered by the defendant an hour before it was offered in evidence without pleading the fact. There is no such rule.

Had the insured been afflicted with an ulcer or open sores ? The insured lived in Auburn for many years prior to 1891, and in the spring of that year he and the family of Mrs. Breese removed to Geneva where they remained until the spring or summer of 1893, when they returned to 118 South Division street, Auburn. While the insured was living at Geneva in his daughter’s family, it is contended that he was afflicted with an ulcer on his right leg near the knee, which Dr. Myron D. Blaine, a physician practicing at Geneva, testified he treated, making fifteen visits between October 21, 1891, and January 21, 1893. He testified that the sore yielded to treatment and “ became apparently healed.” Two witnesses who boarded in the family of Mrs. Breese, Joseph M. and Betty I. Frame, testified that they saw the sores and saw Dr. Blaine treating them. Two other witnesses testified that they heard the insured while living in Geneva complain that his legs were sore. Mrs. Breese a,nd the plaintiff testified that Dr. Blaine was called to treat Mrs. Breese, and that on one occasion Mrs. Breese asked the doctor to examine one of the legs of the insured, and that the doctor pronounced it a case of eczema and prescribed an ointment, which was procured and applied by Mrs. Breese, and that the trouble disappeared. She also testified that the doctor examined the leg on only two occasions, and that the insured was in good health while living in Geneva; was not sick a day, but was around and did light work as usual. The account of Dr. Blaine, _ entitled “Account of Breese,” was offered in evidence, on which seventeen visits are charged for ■— one marked “ girl ” and another “ Mrs.; ” otherwise the account does not show the name of the patient attended. The doctor testified that he discovered some difficulty with the heart of the insured. Dr. John D. Tripp, who had been the physician of the insured for some years, testified that he examined him and discovered no diffi.culty with his heart. Under this state of the evidence, the question whether the insured had been afflicted with an ulcer, or with open sores, was a question for the jury. It is not asserted by the appellant that the court erred in its charge bearing upon this question.

Was the insured in sound health when the application was made? Upon this issue Dr. John D. Tripp, the defendant’s medical examiner, testified that he examined the insured, described the examination which he made, and stated that he “ found no unsoundness about the man whatever.” Mrs. Breese, the plaintiff, and some others, testified that the insured was in good health at this time. The defendant offered no evidence to the contrary. A temporary ailment from which a person recovers cannot be considered a disease within the meaning of a life insurance policy. (Cushman v. U. S. Life Ins. Co., 70 N. Y. 72.)

The appellant urges that the court erred in its instruction that the burden was on the defendant to show affirmatively that the insured was not in sound health when the policy was issued. As before stated, the defendant gave no evidence as to the insured’s condition of health at the date of the application, except as it may be inferred from the evidence of Dr. Blaine, who testified that the insured recovered under his treatment. The burden of showing a breach of this warranty was upon the defendant. (Jones v. Brooklyn Life Ins. Co., 61 N. Y. 79; Murray v. N. Y. Life Lns. Co., 85 id. 236; Piedmont & Arlington Life Lns. Co. v. Ewing, 92 U. S. 377; 2 Bacon Ben. Soc. & Life Ins. § 469, and cases cited.) The preponderance of evidence was to the effect that the insured was in sound health, for a man of his years, when the application was signed. A man of fifty-nine years of age is seldom in as sound health as at the age of forty or under.

The insured stated in the application that he was last sick in 1890, and that his trouble was muscular rheumatism. The only evidence of any sickness of the insured before or after that date was given by Dr. Blaine and the other witnesses who testified in respect to the condition of his leg when he lived at Geneva.

As before stated, the evidence as to whether he was sick at that time is conflicting. However, whether he was last sick in 1890 was a question not submitted to the jury by the court, and the defendant made no request that it be submitted. The appellant does not now argue that any error was committed in the reception or exclusion of evidence.

All of the alleged errors argued by the appellant in the brief, or orally at the bar of this court, have been considered, and’ we find none calling for a reversal of the judgment, which, with the order denying a motion for a new trial, should be affirmed, with costs.

All concurred, except Ward, J., not voting.

Judgment and order affirmed, with costs.  