O'Brien v. Home Ben. Soc.

• Citation: 22 N.E. 954,117 N.Y. 310
• Parties: O'BRIEN v. HOME BEN. SOC.
• Decision Date: 26 November 1889
• Court: New York Court of Appeals

117 N.Y. 310

22 N.E. 954

O'BRIEN

v.HOME BEN. SOC.¹

Court of Appeals of New York.

Nov. 26, 1889.

Appeal from supreme court, general term, third department.

This action was brough by the administrator of Peter O'Brien, deceased, to recover upon a certificate of membership issued to him upon his application by the defendant, as follows: ‘This is to certify that Peter O'Brien, of 15 Fayette St., city of Albany, state of New York, has paid the sum of twelve dollars, being the amount required on application for membership, and is therefore accepted as a member of the Home Benefit Life and Accident Society of New York, in division B, subject to the conditions and requirements of the amended by-laws, rules, and regulations of the society, and stipulations contained in the application for membership, and also to the conditions printed hereon. The membership entitles Peter O'Brien, after the presentation of satisfactory proof of the affliction with disabling injury by accident of said member, subject to and in accordance with the charter, amended by-laws, rules, and regulations of the society, and of the conditions printed hereon, to nine dollars, weekly indemnity, not exceeding three months; or if said member shall have become permanently and totally disabled by accident for life, i. e., so as to preclude the possibility of ever following any vocation, or in the event of death, and upon satisfactory proofs thereof, the membership entitles Peter O'Brien, heirs or assigns, within ninety days after satisfactory proofs have been furnished to the officers of the society at the home office, to all of the amount realized from one assessment, not exceeding $2,000, payable at the home office of the society in New York: provided, said member continues to observe and comply with the conditions, requirements, and stipulations above referred to, and to duly pay the semi-annual dues and assessments of said society during membership; otherwise the membership, with all moneys paid to the society, and all claims against the same in his behalf, shall be forfeited, and this certificate shall be null and void, without any notice to said member, or any action thereon being taken by this society. Given under the seal of the society, at New York, [L. S.] this twenty-five of April, 1884.’

The application was taken from O'Brien by an agent of the defendant, and it contains the answers to various questions, some of which are as follows: ‘(1) Are you now in good health, and free from any disorder, infirmity, or weakness? Answer. Yes. (2) Have you ever had any of the following diseases? If so, state particulars and separate answer to each question. [To all of which he answered, ‘No.’ Among the diseases enumerated was ‘rheumatism.’] (3) What sickness, disease, or injury have you ever had? A. None. (4) When were you attended by a physician last, and for what complaint? A. None. (5) Name and residence of your usual medical attendant? A. None.' The application also contained the following: ‘I further declare and agree that the statements and representations contained in the foregoing application and declaration, together with those made to the medical examiner, shall be the basis of the contract between me and the said society; that I hereby warrant the same to be full, complete, and true, whether written by my own hand or not; and that if the same, or any of them, are in any respect untrue, the certificate which may be issued hereon shall be null and void and of no effect, and all moneys which may have been paid on account of such insurance shall be forfeited to said society, and the said contract shall not become binding upon the society unless at the time of its delivery the applicant is in sound health and mind.’ O'Brien died on the 10th day of January, 1886, from the disease of rheumatism, which disease he had had for some years prior to his application, and he had been attended therefor by physicians, and the answers given to the questions above set out were untrue. The plaintiff made proofs of the death of O'Brien, and forwarded them to the defendant, and the defendant refused to make an assessment for the payment of his claim; alleging that it had been defrauded by the untrue answers given by O'Brien as to his health and the medical attendance upon him. Thereafter this action was commenced, and the plaintiff alleged in his complaint the membership of Peter O'Brien; his death; that the amount to which he was entitled under and in pursuance of the certificate was the sum of $2,000; that the defendant had neglected and refused to pay the same, or any part thereof; and he demanded judgment for $2,000, with interest. The defendant in its answer alleged, as a defense, among other things, the untrue answers of O'Brien contained in his application, and that they were false and fraudulent. The action was brought to trial, and a verdict was rendered in favor of the plaintiff. The judgment upon that verdict having been affirmed at the general term, the defendant appealed to this court.

Charles Blandy, for appellant.

E. Countryman, for respondent.

EARL, J., ( after stating the facts as above.)

The application for membership taken by the defendant's agent from O'Brien was signed by his mark. He did not read and was not able to read it, and it was not read to him, and there was evidence upon the trial that he gave correct answers to all the questions contained in the application, but that his answers were incorrectly written...