The plaintiff sues as the beneficiary of a policy of insurance issued by the defendant upon the life of her husband. The defense was that by reason of false and fraudulent representations in the application for the insurance the policy was void.
The plaintiff put the policy in evidence, proved the payment of premiums, and called upon the defendant company to produce the proofs of death previously filed with it. The defendant’s counsel then produced four papers, fastened together, which were thereupon offered in evidence as the proofs of death by the plaintiff’s attorney. Amongst those papers was a'letter, purporting to be signed by the resident physician of Seton Hospital in the city of New York, and stating that “Mr. J. Linderman” had been an inmate of that hospital from July 25, 1903, to October 1, 1903, and that when admitted to the hospital he had been suffering from pulmonary tuberculosis. The application, dated November 6, 1903, stated that the insured had never been under treatment in any dispensary, hospital, or asylum, and had not been under the care of any physician within two years. The defendant offered no evidence, and the court submitted the case to the jury, who found for the plaintiff. The court set the verdict aside upon the defendant’s motion.
It is not clear how the letter of the hospital physician came to be amongst the proofs of death offered by the plaintiff; but it is quite manifest that the paper had been in evidence, and its contents, the subject of a very long colloquy between the court and counsel, without any objection upon the part of plaintiff’s counsel to the reception of the paper. It was not until after the court had charged the jury that counsel for the plaintiff made any objection to the consideration of the paper, which, as before stated, he quite manifestly knew to be in evidence. . He then maintained, as he does now, that he only offered the proofs of death, and that this particular paper was never in evidence. But the minutes of the trial do not sustain him, and, with this letter in evidence, I think the court was fully justified in setting aside the verdict. The statements in the application were so grossly at variance with the facts as shown in the letter, and these facts were of so material a character and so plainly within the applicant’s knowledge, that the inference of fraud was practically irresistible, and the trial justice’s dissatisfaction with the verdict was natural and proper, and he was justified in setting it aside.
The order must be affirmed, with costs.
LEHMAN, J., concurs in the result.