[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 528
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 529 It is undoubtedly the general and well-settled rule, in such cases, that the defendant is bound to establish, to the satisfaction of the jury, the defense that the policy has been avoided by some violation on the part of the insured of its conditions, and if the evidence, which went to make up the plaintiff's case upon the trial, warranted any other inference as to the cause of death, than that stated in the certificate, it was error to dismiss the complaint. Even if it was inferable from the evidence that, although death may have been caused by the use of spirituous liquors, nevertheless, that such use had been under the advice and direction of a physician, the jury should have been permitted to pass upon the question. But the difficulty with the plaintiff's case is that there was no evidence with respect to the cause of the death of the insured, other than that it was the result of intemperance. That evidence was furnished through the plaintiff to the defendant in the certificates, which she delivered to the defendant's agent when making her demand of payment of the policy. Upon those proofs as so furnished the insurance company had the right to rely as her representations, unless and until explained. They operated as admissions by her of a material fact and were competent evidence against her, under the rule, as to admissions against interest. In Spencer v.C.M.L. Insurance Assn. (142 N.Y. at p. 509), Chief Judge ANDREWS, in speaking of the burden resting upon the defendant to meet the affirmative issue interposed by it, said: "The only proof upon which the defendant relied was the admission in the original proofs of loss that the illness of the deceased commenced February 6th, 1890. This was competent evidence in support of the issue, because it was an admission by a party to the record against her interest. * * * The burden of proof was not changed by the admission. Unexplained it would have been conclusive, and the defense would have been made out." This plaintiff was not concluded by the proofs of death which she had presented. Prima facie, they were true statements; but it was open to her to give evidence changing, or correcting, the facts therein appearing to have been stated by, *Page 531 or for, her. In fact, they called upon her to show that her allegation in the complaint as to the death being caused by consumption of the bowels was true. Had that been done, and had it thereby appeared by some evidence that the cause of death was, or could have been, other than as stated in the certificates, and an inference permitted that the statements in the proofs as to the cause of death were incorrect, a question would have been presented for the jury to determine. But the case, when the plaintiff rested, was destitute of any evidence which even tended to show that the representations and statements made and furnished by the plaintiff to the defendant were not true. The plaintiff had not seen her husband for a month prior to his death and, therefore, was unable to say that he had not died from the cause stated in the certificate of the physician, which she presented to the company and upon which she based her own certificate. It is true that she testified to the fact that, in the past, her husband had suffered from diarrhœa and had used spirituous liquors by the advice of a physician and to relieve his sufferings; but that was not at all incompatible with the fact that his death eventually was caused by intemperance. The testimony of the physician, who was examined as a witness in her behalf, was valueless to contradict the certificate; because his attendance upon the deceased had only been for a short period, and that more than four years before the death. It is a singular, and a very pregnant, fact that the plaintiff did not attempt to explain away the damaging effect of her admissions in the certificate by some evidence, either of some other physician who had known the deceased, or of some personal acquaintance. It is also singular that the friend, whose certificate as to the cause of death the plaintiff had furnished to the defendant and who was also examined upon the trial, was not asked to testify as to the temperate or intemperate habits of the deceased. The result was that, when the plaintiff rested her case, but one inference was permissible and that was that the facts, which the plaintiff had represented to the defendant in the certificate accompanying *Page 532 her demand for payment, were true and incapable of being contradicted. It is true that, in her own certificate, she had answered the question as to the particulars relative to the last illness, that the deceased was "found at Earl's hotel suffering from diarrhœa and brought to the hospital where he died;" but as, at that time, she was absent and had been so for two previous weeks, it only amounted to the statement of a fact not inconsistent with death from the intemperate use of spirituous liquors. To have submitted the case to the jury would have been without justification in the law and a verdict rendered for the plaintiff could not have stood the test of an application to set it aside, as being without evidence to support it.
The judgment should be affirmed, with costs.
ANDREWS, Ch. J., O'BRIEN and HAIGHT, JJ., concur; BARTLETT, MARTIN and VANN, JJ., dissent.
Judgment affirmed.