Brotherhood of American Yeomen v. Hickey

LEVY, J. (after stating the facts as above). Appellant insists that the trial court should have granted the motion for new trial upon the ground that the weight and pre- *164 ponderanee of the evidence show that the insured at the time of making his application and at the date of the policy had tuberculosis of the lungs and had a disease of the urinary and genital organs and was not in good health as answered by him in his application. As to whether a person is in good health is essentially a question of fact, and in this case the evidence is conflicting as to whether the insured' was in good health at the time of his application. According to the record, a competent physician, as proven, testifies that he examined the insured at the date of his application, and states the manner and mode of the examination. He testifies as follows: “At the time I examined Hickey, he had none of the following diseases: Bright’s disease, cough, consumption, difficulty in breathing, disease of heart, disease of genital or urinary organs, disease of lungs, irregularity of heart action, pains in chest, pleurisy, palpitation, pneumonia, spitting or coughing of blood. * * * Hickey had no disease at the time I examined him that was disclosed by my examination or otherwise. Yes, on June 10, 1911, at the time I examined him, Hickey was in good health.” And there was other evidence, by nonex-perts, showing that the insured at the time was in apparent good health; while, on the other hand, there is evidence of competent physicians, as proven, and of others, showing that the insured was not in good health because of symptoms of tuberculosis of the lungs. In view of this conflict of evidence, this court does not feel warranted in holding that the trial court erred in- overruling the motion for new trial upon' this ground. Appellant makes the further contention that the trial court should have granted a new trial because the insured falsely and fraudulently stated in his application that he had consulted a physician in the last ten years only for remittent fever, when, as shown by the evidence, he had consulted Dr. Robinson within a few weeks prior to his application for a disease of the urinary and genital organs. Dr. Robinson testifies that Mr. Hickey himself “found something wrong with his urine, and he had an idea it was loss of semen and wanted me to give him some medicine.” The physician made a microscopic examination of a sample of insured’s urine, and discovered, as testified, tuberculosis germs, and “reached the conclusion that the kidney was being attacked' by the tuberculosis bacilli.” As to the extent of the trouble, the physician states: “After straining the urine, there was left a very minute quantity of the substance. It would take gallons of urine to get any amount at all. I hardly got enough from each test to make a strain for a .specimen to place under the microscope. I could not designate the quantity, but it was very minute. * * * The condition of his kidneys at that time must have been mild; that is, the attack must have been mild, judging from the fact that he was able to go about his work. The cells of the kidney were breaking down very slightly. I saw very few cells of the tube of the kidney.” 'Another physician testified that he examined the insured on June 10, 1911, several months after Dr. Robinson did, and that the insured had no disease of the genital or urinary organs. The jury made the finding on this issue that the insured did not have any disease of the genital or urinary organs before June 10, 1911, and on said date. And, if the insured did not have any disease of the genital or urinary organs before June 10, 1911, as found by the jury, then the insured did not misrepresent or conceal his physical condition in that respect. And even though it be true that the insured did consult a physician before June 10, 1911, for some slight or temporary cause or ailment respecting his kidneys, the trial court was authorized to find, in the light of the evidence, as in support of his judgment we must assume he did, that the ailment was not of a character or to the extent of being material to the risk assumed. Article 4834, Vernon's Sayles’ Stat. It is believed the court did not err in overruling the motion for new trial upon the ground urged. The first and second assignments of error are overruled. The third, fourth, and fifth assignments relate to the admissibility of evidence. The appellant offered in evidence, and the court sustained the objection to the introduction of the proofs of death, the certificates of the plaintiff, the attending physician, and the coroner furnished to the defendant by the plaintiff under the terms of the policy. The evidence was offered for the purpose of showing the cause of the death of the insured, and as admissions of the plaintiff. There is no condition in the policy that the proofs of death furnished under the terms of the policy shall be evidence of the fact in a trial in behalf of the defendant. In order to make the testimony admissible in that form, rather than by the form of depositions as provided by the statutes, there would have to be an agreement of the parties to so use the evidence in that form. The case of Kipp v. Insurance Co., 41 App. Div. 298, 58 N. Y. Supp. 494, cited by appellant, showed an agreement of the parties. In that case the opinion states: “The policy provided that such proofs should contain answers to each question propounded to the claimant, physicians, and other persons, and that all the contents of such proof should be evidence of the facts therein stated in behalf of the insurance company, but not against it.” And if the affidavit of plaintiff herself, furnished as a part of the proofs, was an admission, to show the date and cause of the death of the insured, the error in not admitting such affidavit is harmless, for the plaintiff herself testified that the insured died of tuberculosis of the lungs on August 10, 1914. The judgment is affirmed.