Seidenspinner v. Metro. Life Ins. Co.

• Decision Date: 01 May 1903
• Citation: 67 N.E. 123,175 N.Y. 95
• Parties: SEIDENSPINNER v. METROPOLITAN LIFE INS. CO.
• Court: New York Court of Appeals Court of Appeals

175 N.Y. 95

67 N.E. 123

SEIDENSPINNER

v.METROPOLITAN LIFE INS. CO.

Court of Appeals of New York.

May 1, 1903.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Emelie R. Seidenspinner against the Metropolitan Life Insurance Company. Judgment for plaintiff was affirmed by the Appellate Division (74 N. Y. Supp. 1108), and defendant appeals. Reversed.

Seward A. Simons, for appellant.

Moses Shire, for respondent.

PARKER, C. J.

We think a new trial should be granted in this action because of error in refusing to receive evidence offered by defendant tending to establish that insured was sick at other times than those mentioned in his application for insurance. The application was made in April, 1900, and, in answer to the direction to ‘give full particulars of any illness you may have had since childhood,’ insured said: ‘In 1895 injured knee by a fall; one month in 1899 a cold-not confined to home.’ A further inquiry was, ‘When were you last confined to the house by illness?’ and to it he answered, ‘In 1895, as above.’ Defendant attempted to show that these answers were not true; that insured was at the time of his application, and for a long time prior, in poor health-suffering from a chronic disease, which resulted in his death in October following. It proved that at the time of the application insured was a member of four benefit associations-Wuerttemberger Suavia Benevolent Association, Wuerttemberger Swaben Benevolent Association, the Foresters, and the Odd Fellows; that the by-laws of each of these associations provided for the payment of certain sums weekly during the sickness of a member; that the by-laws of the first association provided that payments should be made only in case the member demanded them; that with a claim the member must submit a certificate of a physician; that the committee on sickness must visit a sick member weekly, and report whether he was worthy of support, and that the president must visit him on the day of the meeting, and report how the committee had fulfilled its duty. It proved by the secretaryof the second association that he knew Seidenspinner, the insured, and had in his possession an application of Seidenspinner for sick benefits. The witness produced the paper and then said: ‘That is the doctor's certificate. * * * There is a printed form in which Seidenspinner signs his name, asking the association to pay him money because he was sick.’ When the treasurer was examined, he said: ‘I have been treasurer since the organization was organized. It is 10 or 11 years. I have the treasurer's books of the organization. They show the amounts paid out by me for sick benefits for the last 5 years. * * * I can tell by looking over the book if I paid any sick benefits to Seidenspinner during the last 5 years. The first time I paid him in 1895. We paid him once $12 on the 7th of September, 1895, I guess. [It seems to be conceded that this payment covers the occasion referred to in his application, when he said he was suffering from an injury of the knee, due to a fall.] Q. Defendant's Counsel: Give us the next one. Plaintiff's Counsel: I object to this evidence as not being any proof that the man was sick. I object to any proof showing that this man committed any breach of warranty under these answers. Because people paid sick benefits does not prove the sickness at all. A man might be hoaxing them or fooling them. You can't tell. It is no proof of his illness. The Court: I think you ought to be confined to the best evidence which you can give. Defendant's Counsel: That compels us to go to the people who are the antagonists of this defendant in this lawsuit. Plaintiff's Counsel: That is not the fault of the court. Defendant's Counsel: I do not think it is the best evidence of his illness. I think it is close, myself. What does your honor hold? The Court: I think I will exclude it. Defendant's Counsel: An exception.’ The witness was also the treasurer of the Foresters' Association, and, he having stated that he had the treasurer's books with him, defendant's counsel asked: ‘And those show the amount in the same way paid for sick benefits to this man for the last five years? Plaintiff's Counsel: I object to that. Defendant's Counsel: I want to make an offer in regard to the Foresters. The Court: The same disposition will be made of that as the other.’ Defendant excepted and asked the witness: ‘Can you tell, as a member of the Foresters-treasurer-how much money was paid to this man for sick benefits? Plaintiff's Counsel: I object on the ground it is no proof any money was. Q. Was there any money paid to him for sick benefits? Plaintiff's Counsel: I object on the ground it is not competent evidence of his sickness. The Court: He may answer that question. Plaintiff's Counsel: He can state money was paid him. Q. Was money paid to this man, Gottlieb Seidenspinner, in his lifetime, by the Foresters? A. Yes, sir. Q. Do you know how much, without referring to your books? A. I couldn't tell particularly. Q. Can you refresh your recollection by looking at your books? A. Yes, sir. Q. Now, have you the books here of the Foresters? A. Yes, sir. Defendant's Counsel: Now, I will offer to prove by the witness the amount of money paid during his lifetime, previous to the time of the application, and at various dates, for sick benefits. The Court: The same disposition of it will be made. Defendant's Counsel: I except.’

The objection of plaintiff's counsel was that this evidence would not tend to prove that Seidenspinner was sick at the times sick benefits might have been paid to him. But this view loses sight of the fact that payment of benefits in pursuance of the by-laws of the various associations to Seidenspinner amounted to an admission by him that he was sick at the time he received the benefits. Many cases are to be found in the books where even a failure to make answer to a statement made in the presence of a party affected by it has been held to amount to an admission. Discussion of that question may be found in the following cases: Gibney v. Marchay, 34 N. Y. 301; 305;McKee v. People, 36 N. Y. 113, 115;Kelley v. People, 55 N. Y. 565, 571,14 Am. Rep. 342;People v. Koerner, 154 N. Y. 355, 374,48 N. E. 730;People v. Kennedy, 164 N. Y. 449, 456,58 N. E. 652;People v. Smith, 172 N. Y. 210, 233,64 N. E. 814. In some of these cases it was held that the silence of the party affect amounted to an admission on his part, while in others it was held that it did not; the test generally applied being, was the...