Patten v. United Life & Acc. Ins. Ass'n

• Decision Date: 07 June 1892
• Court: New York Court of Appeals Court of Appeals
• Parties: PATTEN v. UNITED LIFE & ACC. INS. ASS'N.

133 N.Y. 450

31 N.E. 342

PATTEN

v.UNITED LIFE & ACC. INS. ASS'N.

Court of Appeals of New York.

June 7, 1892.

Appeal from supreme court, general term, first department.

Action by Charlotte W. Patten against the United Life & Accident Insurance Association on a policy of insurance on the life of Jarvis Patten, deceased. From a judgment of the general term (16 N. Y. Supp. 376) affirming a judgment entered on a verdict directed for plaintiff, defendant appeals. Reversed.

Harry Wilber, for appellant.

J. A. Shoudy, for respondent.

EARL, C. J.

This action was brought on a policy of insurance upon the life of James Patten. The defendant is an assessment insurance company, and the policy by its terms was made payable to the plaintiff. It was provided in the policy that a failure to comply with the rules of the association as to the payment of assessments should render the policy void. Patten had failed to pay an assessment as required by the rules of the association, and for such failure his policy had lapsed and become void prior to the 19th day of April, 1888. On that day, for the purpose of being reinstated as a member of the association, he executed a certificate certifying that he was in good health, and that certificate was sent to and reached the defendant on the 23d day of April, 1888. Patten died on the 16th day of May thereafter; and the sole defense to this action, which is now relied upon, is that the certificate as to his health on the 19th day of April was untrue. To defeat the action, it was incumbent upon the defendant to show that, at the date of the certificate, Patten was not in good health.

Prior to the trial the evidence of Dr. Perrin, of Washington, D. C., was taken, at the instance of the defendant, under a commission issued for that purpose; and upon the trial it attempted to read in evidence the doctor's examination taken under the commission. The court, upon the plaintiff's objection, refused to permit the answers to certain of the interrogatories to be read in evidence, and such refusals are now the defendant's chief cause of complaint. In answer to the 1st, 2d, 3d, and 4th interrogatories, Dr. Perrin stated that he was a physician, and that his place of residence was in Washington; that he knew Patten, and that his acquaintance with him continued until his death, on May 16, 1888. The interrogatories overruled by the court, and the objections made to them, are as follow: ‘Did you attend Jarvis Patten professionally in his last illness?’ 'Did you continue in attendance upon Jarvis Patten until his death?' ‘When were you first applied to in reference to the last illness of Jarvis Patten? Please give the exact date and time,-whether day or night.’ ‘Where did you first see Jarvis Patten concerning his last illness,-at your office or at his residence, or elsewhere?’ These interrogatories were objected to by plaintiff's counsel as calling for a conclusion, and as incompetent and irrelevant. The following interrogatories were objected to generally, no ground being stated: ‘How many times did you attend him professionally intermediate the occasion you first saw him in relation to his health, as you have testified, and the death of Jarvis Patten? Please give the dates and hours of your attendance,as far as you are able.’ ‘How many of these attendances were at your office, and how many at the house of Jarvis Patten?’ ‘Please give te dates of such attendances at your office.’ ‘Please give the dates of such attendances at the house of Jarvis Patten.’ These interrogatories do not appear to have been objected to under section 834 of the Code,¹ and it was not objected that the doctor was not competent to answer the questions. The defendant certainly had the right to show, if it could, by some witness, that Patten was not in good health at the time he signed the certificate; and, if it could have shown by any witness that at or about that time he was in charge of a physician, it would have gone a great way to show the untruthfulness of the certificate, and to establish its defense. Patten died in less than a month after executing the certificate certifying that he was in good health, and his health during the whole of that time was a pertinent matter of inquiry and investigation, and the defendant had the right to show its condition by the doctor, unless his evidence was objected to and excluded...