Foley v. Arcanum

• Decision Date: 15 December 1896
• Citation: 151 N.Y. 196,45 N.E. 456
• Parties: FOLEY v. ROYAL ARCANUM.
• Court: New York Court of Appeals Court of Appeals

151 N.Y. 196

45 N.E. 456

FOLEY

v.ROYAL ARCANUM.

Court of Appeals of New York.

Dec. 15, 1896.

Appeal from supreme court, general term, Second department.

Action by Annie Foley against the Royal Arcanum on a mutual benefit certificate. From a judgment of the general term (28 N. Y. Supp. 952) affirming a judgment entered on a dismissal of the complaint, plaintiff appeals. Affirmed.

John M. Gardner, for appellant.

S. M. Lindsley, for respondent.

HAIGHT, J.

This action was brought to recover the amount alleged to be due upon a benefit certificate. The defendant is a fraternal beneficiary society, and as such issued to Jeremiah B. Foley a benefit certificate for $3,000, payable upon his death to his widow. The certificate was issued on the 5th day of April, 1890, and Foley died on the 14th day of July thereafter, leaving the plaintiff, his widow, him surviving. The defense interposed was misrepresentations as to his physical condition, and breach of warranties with reference thereto. The representations complained of were to the effect that he had no hemorrhoids, or diseases of the genital or urinary organs. The evidence taken at the trial tended to show that he was afflicted with these diseases; that he had consulted physicians with reference thereto, and had been advised to go to the hospital and submit to an operation, prior to his makinghis application for insurance herein; that, shortly after his application was allowed and the certificate issued to him, he went to a hospital in the city of New York, and submitted to an operation; and that he shortly thereafter died in the hospital. The evidence with reference to his physical condition was without substantial dispute, and, upon the theory that his statements were warranties, no question of fact was presented which it was necessary to submit to the jury. The application was in writing, signed by Foley, and, among other things, contained the following: ‘I do hereby warrant the truthfulness of the statements in this application, and consent and agree that any untrue or fraudulent statement made herein or to the medical examiner, or any concealment of facts by me in this application, * * * shall forfeit the rights of myself and my family or dependents of all benefits and privileges therein.’ And further: ‘I hereby expressly waive any and all provisions of law now existing, or that may hereafter exist, preventing any physician from disclosing any information acquired in attending me in a professional capacity or otherwise, or rendering him incompetnet as a witness in any way whatever; and I hereby consent and request that any such physician testify concerning my health and physical condition, past, present, or future.’ The benefit certificate issued to him, among other things, provided that it was issued ‘upon condition that the statements made by him in his application for membership in said council, and the statements certified by him to the medical examiner, both of which are filed in the supreme secretary's office, be made a part of this contract.’ It is now urged that the ‘statements' referred to in the certificate do not include the warranty or waiver embraced in the application, and that such warranty and waiver became no part of the contract. This view, we think, should not be adopted. From the reading of the certificate, application, and medical examination, which is also signed by Foley, it is quite apparent that it was the understanding and intention of the contracting parties that the application was to become a part of the contract. We do not overlook the rule that, in construingcontracts of insurance, we should be strict as to the insurer, and liberal as to the insured. It does not in this case permit an escape from the manifest intention of the parties. To limit the word ‘statements,’ appearing in the certificate, to that which he has stated in the application with reference to his physical condition, excluding all other assertions, we think, would be too narrow and technical. The word, as commonly used, has a more comprehensive meaning. It is a formal embodiment in language of matter communicated to another. It is, to express the particulars of; to represent fully in words; make known specifically; explain; narrate; to recite facts, etc. See Cent. Dict. It is not necessarily limited to the statement of a fact or the substance of a case, but may include the provisions of a contract. The application, as we have seen, contained a warranty as to the correctness of the representations made, and also a waiver of the applicant's right to exclude the evidence of physicians who had treated him. He stated that he warranted, and that he waived, and, from allusions made in the certificate thereto, the conclusion is irresistible that it was the intention of the parties to make the warranty and the waiver a part of the contract.

A more serious question is presented with reference to the waiver. It is contended that a waiver before the trial is against public policy, and that the law at the time of the trial did not...