(dissenting). Plaintiff’s counsel called upon defendant’s counsel to produce proofs of death. Defendant’s counsel produced a roll of papers, which were marked in evidence as one exhibit. After they were so marked, and after the justice had charged the jury, plain*98tiff’s counsel discovered that the roll of papers contained a letter from a doctor setting forth that the “records” of a certain hospital showed that the deceased, before he had made application for the policy of insurance, had been treated therein for tuberculosis. The assumed fact that deceased had been in a hospital, as stated in the letter, was the subject of a colloquy between court and counsel before the charge; defendant’s counsel asserting that the statement appeared in the proofs of death, and, although plaintiff’s counsel did not deny the statement, there was no such statement in the proofs of death. Plaintiff’s counsel did not notice the letter until after the charge. The case was finally submitted to the jury.
Counsel for plaintiff claimed surprise by the introduction of this letter as evidence. Proofs of death were called for, and nothing else. If such roll contained any other paper, could plaintiff be bound by that paper? Counsel may have been remiss in not examining the roll before he introduced it in evidence; but, considering the whole case I do not think that such remissness, so long as the justice’s attention was called to it before final submission, should be charged to the plaintiff. The question of fraud, in all such cases, is such an important one that it should be directly litigated. Here it was not. It entered into the case by an adventitious method. This letter of the doctor, if offered as independent evidence, would be clearly incompetent. In my opinion, substantial justice requires that the order should be reversed, with costs.