
    Spencer v. Citizens’ Mutual Life Insurance Association.
    (New York Superior Court
    General Term,
    May, 1893.)
    Plaintiff's husband, in order to renew a lapsed policy in the defendant company, and to induce it to accept an overdue premium, delivered to defendant, February 18, 1890, a warranty in writing in the form of an application for reinstatement, in which he declared that he was then in soisnd health, and free from any symptoms of disease, and there was then no condition of his person or occupation tending to impair his health, injure his constitution, or shorten his life, and that he had not been sick or required the services of a physician, and that there had been no change in his family history or physical condition since the date of the policy, to wit: February 9, 1887. Defendant accepted the overdue premium and reinstated the policy. Plaintiff’s husband died May 7, 1890. The proof of loss first served by plaintiff, and sworn to-by her and the attending physician, stated that the duration of the last illness of the husband was “ from February 6 until May 7, 1890." On ¡November 1,1890, and before suit brought, plaintiff served upon defendant supplemental proofs, in which she and the attending physician corrected the statement in the first proofs as to the time when the husband was taken sick. In an action to recover on the policy, the defense was that the statement and warranty aforesaid were false and untrue, and defendant claimed that the first proofs of loss were conclusive against plaintiff’s right to recover, or at least shifted the burden of proof to her from defendant.
    
      Held, that the proofs first served did not estop plaintiff' from showing the-
    truth. The evidence on the trial justified the jury in finding that defendant had failed in its defense, and that there was in fact no breach of the warranty.
    The trial judge refused to instruct the jury that the burden of proof that the husband was not sick prior to February 13, 1890, was upon plaintiff, but charged that it was upon defendant to show that fact. Held, no error. The defendant neither returned nor offered to return the dues received at the time of reinstating the policy, nor payments made thereafter. Held, that it was not in a position to urge that the contract of insurance had been rescinded.
    Appeal by defendant from a judgment entered on verdict in favor of plaintiff, and from order denying motion for a new trial. -
    
      Louis C. Whiton, for defendant (appellant).
    
      G<wri/ngton da Emerson, for plaintiff (respondent).
   McAdam, J.

The action is by the plaintiff as the beneficiary named in a policy of insurance issued by the defendant for $3,000, on the life of the plaintiff’s husband. It appears that the decedent failed to pay a premium winch became due to the defendant February 9, 1890, in consequence of which default the policy lapsed and became void. The decedent in order to renew his policy, and induce the defendant to accept the overdue premium, made and on February 13, 1890, delivered to the defendant a warranty in writing, in the form of an application for reinstatement, in which he declared that he was then in sound health, and free from any symptoms of disease, and there was then no condition of his person or occupation tending to impair his health, injure his constitution or shorten his life, and that he had not been sick or required the services of a physician, and that there had been no change in his family history or physical condition since the date of said policy. The defendant thereupon accepted the overdue premium, and reinstated the policy.

The defense is that the statements and warranty aforesaid were false and untrue.

The decedent died May 7, 1890, and within three months of the time of his reinstatement. The proofs of loss first served by the plaintiff and sworn to Dy her and the attending physician, state that the duration of the last illness of the decedent was “from February 6 until May 7, 1890that the remote cause of death was “ la grippe,” and the immediate cause “acute Bright’s disease.” On November 1, 1890, and before suit brought, the plaintiff served upon the defendant supplemental proofs, in which she and the attending physician corrected the statement in the first proofs as to the time when the decedent was taken sick.

The defendant claims that the first proofs of loss, unexplained by the personal testimony of the plaintiff at the trial, establish the breach of warranty pleaded, and are conclusive against her right to recover ; and if not so considered, they at least shifted the burden of proof from the defendant to the plaintiff. The proofs first served are certainly not conclusive against the plaintiff. Rotliing but a technical estoppel will shut out the truth. The preponderance of authority shows that preliminary proofs may be used. First. For the purpose of showing that the requirements of the policy in that regard have been complied with. Second. As, prima facie evidence of the facts stated therein against the insured and on behalf of the company {Ins. Co. v. Newton, 22 Wall. 32; Ins. Co. v. Higginbotham, 95 U. S. 380), but they are not conclusive against the claimant (Phillips v. Ins. Co., 31 N. Y. St. Repr. 639; Cluff v. Ins. Co., 99 Mass. 317), for the statements contained in such proofs do not create an estoppel, because all the essential requirements thereof were wanting. Smith v. Ferris, 1 Daly, 18. The statements made by the assured in the proofs of loss are admissions, and may be considered by the jury for what they are worth. But the party furnishing them may show that statements in the proofs were erroneous or inadvertently made. See cases collated in Bacon Ben. Soc. & Ins. § 4Y1, and in May Ins. (3d ed.) § 465. The statement first made by the attending physician was in no manner binding on the plaintiff and was at all times open to explanation (Cushman v. Ins. Co., 70 N. Y. 72), and it was satisfactorily explained at the trial. Indeed, the evidence j>roduced before the jury was of a character sufficient to justify them in arriving at the conclusion that the defendant had failed in its defense, and there had been in point of fact no breach whatever of the warranty. The jury so found, and there is no satisfactory reason for disagreeing with the result arrived at. The defendant insists that the trial judge erred in declining to instruct the jury that in view of the proofs of loss first served upon the defendant, the burden was on the plaintiff to prove that the decedent was not sick prior to February 13, 1890, and that such error was made more manifest by charging that such burden was on the defendant. The claim is based on the erroneous assumption that the statement contained in the first proofs served, shifted upon the plaintiff the onus of disproving facts, which the defendant would otherwise have been bound in the first instance to satisfactorily establish in support of its affirmative defense. The true rule is that the burden of sustaining the affirmative of an issue involved in an action is upon the party alleging the facts constituting the issues, and so remains throughout the trial. The giving of evidence sufficient to establish the fact prima facie, does not shift the burden ; the question is to be determined upon all the evidence, and the jury must be satisfied from the whole case that the allegation is established. Lamb v. Stewart, 46 N. Y. 271; Heinemann v. Heard, 62 id. 448 ; Hale v. Smith, 78 id. 483; Heilman v. Lazarus, 90 id. 678 ; Goldschmidt v. Ins. Co., 102 id. 486; Blunt v. Barrett, 124 id. 117 ; Stewart v. Stone, 127 id. 506; Cent. B. Co. v. Butler, 2 Gray, 506; Perley v. Perley, 144 Mass. 104. In other words, where a defendant has (as in this case) the burden of proof, it remains with him throughout the trial, and the jury must decide where the preponderance lies. If, upon the whole case, the jury is not satisfied that the defendant’s allegation is proven, the plaintiff is entitled to a verdict. Vide supra. Apart from the arguments founded on the misstatements contained in the proofs served, there is not a particle of defense to the action.

Common experience demonstrates that preliminary proofs are often drawn by unprofessional hands from the mere recollection of the witnesses at the time, without data or the care and precision which such documents deserve. They are generally considered by the assured as a mere formal requirement to satisfy the conditions of the policy preliminary to receiving the money 'thereon. To hold such proofs conclusive on the beneficiary, in respect to dates and details (in the absence of fraud or estoppel), would, where the truth entitles the party to a recovery, be without warrant.

Where the dates or details given aid the defense, the proofs served upon the company may be used by it as evidence against the plaintiff, to be considered by the jury, with the explanations offered and other proofs in the case. They were so used and considered here, and the defendant received every benefit from them the law affords.

There is this additional feature in the ease, the defendant, never returned nor offered to return the dnes received at the time of the reinstatement nor the payment made thereafter, and is not, therefore, in a position to urge that the contract has been rescinded by it. Harris v. Ins. Co., 64 N. Y. 196 ; Kabok v. Ins. Co., 21 N. Y. St. Repr. 204.

We find no error requiring a new trial. The judgment and order appealed from must, therefore, be affirmed, with costs.

Sedgwick, Ch. J., and Fbeedman, J., concur.

Judgment affirmed.  