Opinion
May Term, 1900.
Plaintiffs' exceptions sustained and motion for a new trial granted, with costs to the plaintiffs to abide event.
The defendant is a co-operative life insurance association, and James Keefe was a member of the same, holding a certificate of insurance issued to him February 2, 1895, whereby the defendant agreed to pay $2,000 in case of his death while a member of defendant. One-half was to be paid to his wife, Mary A., and the other to his infant daughter, Margaret M., and they have joined in this action as plaintiffs. Keefe died December 13, 1895, while a member of the defendant, and his beneficiaries began this action January 16, 1897, to recover the amount of the certificate or policy. The defense is that Keefe made misstatements in his application for insurance and also to the medical examiner. He was asked: "To what extent do you use intoxicating liquors? None. * * * Have you ever used them to excess or to the extent of impairing your health? No." Keefe at one time was an occasional drinker, but at the time the application was made there was proof that he was entirely free from the use of intoxicating liquors, and the jury would have been warranted in so finding; and it was also for the jury to say whether his use of them had ever been excessive "or to the extent of impairing his health." He also stated that his sister died of "uterine trouble." The defendant produced the town clerk of the town where she died, who was permitted to read from the certificate of the physician who attended her at the time of her death and which certificate was on file in the office of the town clerk stating she died of "phthisis pulmonalis." The certificate possibly may have been admissible had it been offered in evidence, but the manner pursued was not the proper way to prove the record. The plaintiffs sought to show that the insured was informed by members of his family, who ought to have known the disease of which the sister died, that she was afflicted with female trouble, but this testimony was excluded. In construing a certificate and medical examiner's report of this same defendant, in form identical with this one, it was held by this court, in Fitzgerald v. Supreme Council ( 39 App. Div. 251), that the statements in response to the inquiries therein contained were not warranties but representations, as they were not embodied in or made a part of the certificate of insurance. That case is decisive of the present one on the main questions involved. This determination makes the good faith of the insured a pertinent issue in the case, and proof tending to show his knowledge of his sister's affliction is competent upon that issue. As was held when the case was in this court on a former appeal ( 37 App. Div. 276), this proof only bears upon the good faith of Keefe. Of course it is proper and important to show by competent proof the disease of which the sister died. Plaintiffs' exceptions are sustained and a new trial granted, with costs to the plaintiffs to abide the event. All concurred, except Laughlin, J., not sitting.