p. 44membership she represented herself to be in good health and not suffering from cancer. There was a breach of the warranty contained in the application, as claimed by defendant, based upon the certificate of death that was furnished by Dr. Lewis, her attendant physician, on March 24, 1890, which stated that the chief cause of death was cancer of the uterus, and the duration of the disease two years, which would indicate that the decedent had been troubled with that disease .prior to and at the time of her application and admission as a member of defendant’s society. The main question in the case, is whether such certificate, unimpeached and uncontradicted, conclusively established the breach of warranty claimed by the defendant.
Held, that the statement in the certificate must be taken rather as an expression of opinion of the physician, and as such, in no sense conclusive evidence of the fact stated. There is nothing in the act of 1882 (§ 604) requiring the physician to certify to the “ duration of the disease,” so that his opinion that the duration of the disease was two years was not called for by article 9, section 1, of the constitution and by-laws of the defendant, interpreted in the light of the statute ; hence such opinion does not rise to the dignity of evidence prima facie or otherwise. Upon the submission to the jury of this question upon the evidence and the verdict, finding there was no misrepresentation by the decedent, and that she was not in ill health at the time she joined the order, the judgment and order appealed from must be affirmed. No error found in the case.
Before Sedgwick, Ch. J., and McAdam, J.Appeal from judgment in favor of the plaintiff on verdict of a jury, and from an order denying a motion for a new trial.
Meyer Auerbach, attorney, and Lewis Sanders of counsel, for appellant, argued:—
I. Plaintiff’s decedent warranted the truth of the representations contained in her application for membership. Smith v. Ætna Life Ins. Co., 49 N. Y., 213 . “ I warrant that all añswers in this application for membership are true and correct.” “ I am satisfied that such a (false ?) statement shall be sufficient for the withholding of the benefits and all obligations of the Orden
p. 45Germania.” And she warranted that she was “ in good health and not suffering from cancer.”II. The admissions contained in the Health Board’s certificate are fatal to plaintiff’s case. Plaintiff, by decedent’s express contract with defendant, was required to furnish a certificate from the board of health before any claim against defendant accrued. The certificate showed that the deceased died of cancer of the uterus, and that the duration of the disease was two (2) years. That the certificate in question was the identical one furnished defendant by plaintiff’s husband is not denied by him, and is positively sworn to by defendant’s grand financial secretary as the only certificate from the board of health which he received in this case. The contract required the same to be furnished and the certificate of death thereby became prima facie evidence of the truth of the facts herein stated. “ The preliminary proof presented to an insurance company in compliance with the conditions of the policy of insurance are admissible as prima facie evidence of the facts • stated therein- against the insured and in behalf of the company.” Insurance Co. v. Newton, 22 Wall., 32 .Charles Steckler, attorney, and Alfred Steckler of counsel, for respondent, argued:—
I. Good standing and part payment proven. It was proven and conceded that the deceased member was in good standing at the time of her death, and that $200 was paid by the defendant to the plaintiff on account of the claim herein. In order to make out a prima facie case, all that was necessary for the plaintiff to prove was: (1.) The membership of the deceased. (2.) The designation-of the plaintiff as the beneficiary. (3.) The death of the member. (4.) That the member at the time of death was in good standing. (5.) Part payment and recognition of the claim by the defendant. These facts having been proven, the burden was shifted
p. 46to the defendant to prove that at the time of the member’s admission she falsely represented her condition of health, and it, therefore, became unnecessary to produce the certificate of death issued by the board of health. By the defendant paying a part of the claim it recognized its validity and waived a strict compliance of its constitution and by-laws. An insurance company may waive any of the provisions of its policy. So can a benevolent corporation waive any portion of its by-laws and constitution. Bodine v. Exchange Fire Ins. Co., 51 N. Y., 117 ; Goodwin v. Mass. Mut. Life Ins. Co., 73 Ib., 490; Hotchkiss v. Germania Fire Ins. Co., 5 Hun, 100 ; Shaft v. Phoenix Life Ins. Co., 8 Ib., 632 ; Sheldon v. The Atlantic Fire Ins. Co., 26 N. Y., 466 ; Whitehead v. Germania Fire Ins. Co., 76 Ib., 416.II. As to the statement in the death certificate that the deceased died of cancer of the uterus, and that the disease was of two years’ duration. The certificate issued by the board of health is not evidence of the cause of death, but only of the fact of death (see Buffalo Loan, etc., v. Knights Temp. Assn., 56 Hun, 303 ). This case distinctly decided that where the by-laws require notice of death the statement in the certificate of the physician as to cause of death is inadmissible, even where such cause voids the policy. The by-laws of the defendant provide only for the delivery of the certificate of death. They do not provide that the entire contents of the certificate shall be evidence in their favor, nor do they provide that the certificate shall be used for any other purpose than to prove that death has actually occurred. The certificate is simply a notice of death and so intended to be by the by-laws. The certificate exercises no other function and is evidence of nothing else. But, if it should be held as proving the cause of death, its statements contained therein, viz., that the deceased died of cancer of the uterus and that the disease was of two years’ duration, are rebutted by the evi
p. 47dence of Conrad Muller. He testified that Dr. Lewis (he it was who made the certificate from which the hoard of health issued the certificate) never attended the deceased before her last illness; that he never treated her before that. This evidence raised an issue of fact whether Dr. Lewis had certified to the truth that the disease was of two years’ duration. This statement was evidently untrue, for the doctor had never seen or attended the patient before the 18th of October, 1889, and her death occurring five months later, and on the 24th of March, 1890. And besides, Doctor Lewis in the board of health certificate corroborates Conrad Muller. For in the certificate he certifies that he attended the deceased from October 18th, 1889, to March 24th, 1890, the day of death. Whether or no these statements set forth in the certificate were competent evidence, the defendant has had the benefit thereof, for this was the only evidence tending in any way to show that the deceased had been afflicted with cancer, and the jury having found on that issue in favor of the plaintiff, the defendant cannot now complain.The defendant is a benevolent corporation, and the plaintiff the beneficiary named in a certificate of membership therein, issued to her sister, by the terms of which the sum of $1,000 on her death became payable to the plaintiff.
The decedent was admitted to membership December 26, 1888, and died March 24,1890. In her application for membership, she represented herself to be in good health and not suffering from cancer.
It is claimed that there was a breach of the warranty, because it appeared by the certificate of death furnished by Dr. Lewis, her attending physician, on March 24, 1890, that the “ chief cause of death was cancer of the uterus, and the duration of disease two years,” which would indicate that the decedent had been troubled with
p. 48that disease for about nine months prior to her admission as a member of the order. The certificate was offered in evidence by the defendant, and the question presented is whether such certificate, unimpeached and uncontradicted, conclusively establishes the breach of warranty pleaded by the defendant. Dr. Lewis, the physician who gave the certificate, never attended the decedent till October 18, 1889, five months preceding her death, so that the statement in the certificate that the duration of the disease was two years, was not founded on actual knowledge of the fact, and must be taken rather as an expression of opinion, and as such in no sense conclusive evidence of the fact stated.
True, the plaintiff was required as a condition precedent to the enforcement of her claim, to present a certificate of death issued by the board of health. The purpose of this certificate was to establish the death of the member, proof in this form being alone acceptable. There is nothing, however, in this requirement making the mere opinion of the attending physician conclusive evidence, as to the duration of the disease he was professionally called upon to heal.
The preliminary proofs presented to an insurance company in compliance with the conditions of the policy of insurance are admissible as prima facie (not conclusive) evidence of the facts stated therein against the insured and in behalf of the company. Ins. Co. v. Newton, 22 Wall., 32 . The Court of Appeals in commenting upon this case said, ce It may be inferred that the whole (proofs) were verified by the claimants, and that they were called for by the contract of insurance.” Goldschmidt v. Mutual Life Ins. Co., 102 N. Y., 493 . If so verified they might be considered as admissions made by the claimants, and as such evidence of the facts presented.
In Buffalo L. T. & S. D. Co. v. K. T. & M. M. A., 126 N. Y., 458 , it was held that the statute and ordinances
p. 49requiring attending physicians in Buffalo to furnish certificates setting forth the cause, date and place of death of any person under their charge, were police regulations, and the records required for local and specific purposes, not public records in such sense as make them evidence between private parties of the facjfcs recorded.
The Consolidation Act of 1882 (§ 604) applicable to the city of New York, requires that “ Physicians who have attended deceased persons in their last illness shall, in the certificate of the decease of such persons, specify, as near as same may be ascertained.....the direct and indirect cause of death of such deceased persons.”
There is nothing requiring the physician to certify to the “ duration of the disease,” expressio unius, exdusio alterius, so that the opinion of the attending physician that the duration of the disease was two years, was not called for by Art. IX,, § 1, of the constitution and bylaws of the defendant, interpreted in the light of the statute before referred to. Hence such opinion does not rise to the dignity of evidence prima facie or otherwise. Certificates given by public officers are evidence only of the facts which they are required to record; as to other matters, they are extra-judicial and must be rejected. Greenl. Ev., § 498. In Buffalo L. T. & S. D. Co. v. K. T. & M. M. A. A., 56 Hun, 304 , the court held, that “ there is no rule making the records or books of the board of health evidence as to the cause of death on the trial of an action at law where that question is material. Nothing but common-law evidence would defeat a recovery in the absence of a statute or constitutional provision malting other evidence competent.” So, in Hoffman v. N. Y. C. & H. R. R. R. Co., 46 N. Y. Superior Ct. R., 526, Affd. 87 N. Y., 23 , it was held, “ that records kept at a police station and hospital showing injuries received by plaintiff by an accident, are not admissible in evidence against him in an action for
p. 50damages for such injuries, it not appearing
that the entries therein were made by persons having knowledge of the facts, or from statements of the plaintiffThe defendant on the motion to dismiss the complaint objected to the absence of certain evidence which was afterwards supplied, so that any possible error in the ruling was effectually cured. Bartholomew v. Lyon, 67 Barb., 86 ; Barrick v. Austin, 21 Ib., 241; S. & S. P. R. Co. v. Thatcher, 11 N. Y., 102 ; Colegrove v. H. & N. H. R. R. Co., 6 Duer, 382 .
The defendant recognized the validity of the plaintiff’s claim by paying $200 an account thereof before suit brought, and the litigation concerned $800, the balance due. Upon the conclusion of the proofs, the trial judge sent the case to the jury under a clear and concise charge whereby he instructed them, that if they found that the decedent in her application for membership made any false statement or representation regarding her then state of health, or if she was afflicted with disease at that time, they should find for the defendant. The burden of proving the breach of warranty pleaded was on the defendant, and the submission of the question to the jury was put as strongly in favor of the defendant as it could expect or language make it. The jury found that there was no misrepresentation and that the decedent was not in ill health when she joined the defendant’s order, and found a verdict in favor of the plaintiff for the balance due with interest.
We find no error, and the judgment and order denying the motion for a new trial must be affirmed, with costs.
Sedgwick, Ch. J., concurred.