Redmond v. Industrial Benefit Ass'n

The defendant, being a mutual co-operative association, organized under and in pursuance of the provisions of chapter 175 of the Laws of 1883, issued its certificate or policy of membership to Catherine Eedmond, dated the 17th day of October, 1891, in class B of the association, and providing for the payment to the beneficiary of the amount therein named on proof of the death of the ¿ssured. On the 6th day of April, 1892, the assured died, and proof of the death was duly made, and presented to the association, which refused to pay the amount of insurance on the ground that-thé representations of age and health contained in the application were untrue, and that the policy was for that reason void; and in this action, prosecuted by the plaintiff, as the sole beneficiary named in the policy, the defendant interposed such alleged false representation by way of defense.

It is quite true, as contended by' the learned counsel for defendant, that the application, and policy issued by the company under it, constitute the contract of insurance, and that the insured, in entering into that contract, is subjected to the terms, rules, and provisions of the by-laws of the company. Hutchinson v. Supreme Tent, etc., 68 Hun, 355 ; 52 St. Rep. 199 ; Smith v. Bown, 58 St. Rep. 605 ; 27 N. Y. Supp. 11 . Section 1 of article 7 of the bylaws makes the application upon which the certificate is based a part of the contract between the association and the assured, and provides that any fraudulent or untrue answers or statements made therein concerning the'age, health, or condition of the person therein insured, or of any material fact, shall render the certificate issued thereon void. Such representations in the applica-' tfon are deemed a warranty, and their falsity, in an essential particular, a breach of the same, which renders the policy void. Dwight v. Germania Life Ins. Co., 103 N. Y. 341 ; 3 St. Rep. 115 . If, therefore by the undisputed evidence, the warranty in the application was false or broken, then the policy would be vitiated or void; and the beneficiary, in such case, could not recover. The only evidence in the case, so far as we can see, tending to show a breach of the warranty in the application, is that found in the proof of the death of the insured, offered in evidence by the defendant,- That proof consisted of a verified certificate of Dr. Boyd, filed by the plaintiff witli the defendant, containing, among other things, the opinion of the doctor as to the cause of her death, and the disease of which she died, and containing also a statement that in January, 1891, he prescribed for the insured for a disease described in the certificate as “renal calculi.” This certificate having been furnished by the plaintiff to the defendant, as one of the facts tending to establish his right to the insurance fund, it was urged by the defendant as an admission that the insured Mid been, within five years prior'to the time of making her application, ill of some of the diseases referred to in her application was in that particular untrue, and her warranty broken. But it will be seen, by a comparison of the application with his certificate (if competent evidence upon the subject of the diseases of the insured), the former is not contradicted by the latter. The evidence does not, in

None of these appear to be expressly proved untrue by the evidence offered on the trial, even if we regard the certificate of Dr. Boyd competent evidence, as an admission by the plaintiff. But we think that that certificate, so far as it tended to prove any fact acquired by the doctor in his relation as a physician for the insured before the issuance of the policy, was not proper evidence against the plaintiff on the trial, if objected to, under § 834 of the Code of Civil Procedure. The cause of the death was a pertinent inquiry, and, so far as the certificate proved that, it was competent evidence, as an admission by the plaintiff. Buffalo Loan, Trust & Safe-Deposit Co. v. Knights Templar & Masonic Mut. Aid Ass'n, 126 N. Y. 450 ; 38 St. Rep. 247 . But beyond that we do not think it bound the plaintiff, as an admission. Nor do we think his evidence that he prescribed for her in January, February, and March, 1891, any evidence'of a breach of the warranty contained in the application. There was no assertion in the warranty that she had not had the services of a physician within four years previous to the date of the application. This is not inconsistent with the determination of this court in Boland v. Ind. Ben. Association, 56 St. Rep. 382 ; 26 N. Y. Supp. 433 . In that case, Putnam, J., expressly disclaimed the conclusiveness of the certificate of death made by Dr. Graveline, but put his decision upon the ground that the whole evidence upon the trial showed that the certificate was true. It was therefore an open and disputed question of fact, in this case, whether or not the warranty made by the insured in her application was true, which was properly left by the trial ■ judge to the determination of the jury, and his refusal to nonsuit the plaintiff was not error. Nor was it error to exclude the testimony of Dr. Boyd, offered by the defendant, as to what he was treating the assured for in 1891. He testifies that his information upon that subject was such as was necessary to enable.him to treat the insured professionally. That brought him clearly within the prohibition of § 834 of the Code

We think this action well brought, at law, to recbver the amount, which, under this policy, was capable of being ascertained, liquidated, and reduced to a definite sum of money, the amount of which was capable of proof from the books of the defendant, based upon the receipts in the class in which this policy was issued; and the proof seems, in this case, to show .that that amount had been definitely ascertained, and was disclosed to the jury by competent proof. And the money so set apart to meet this class of liabilities could be reached in this action, if not by execution, by proceedings supplemental to, or in aid of, execution. If the plaintiff is entitled, upon the merits, to judgment, we see no objection to a recovery in this form of action. The judgment must be affirmed, with costs.

Putnam, J., concurs; Herrick, J., dissents.