Sladden v. New York Life Ins. Co.

• Decision Date: 05 April 1898
• Docket Number: 440.
• Citation: 86 F. 102
• Parties: SLADDEN v. NEW YORK LIFE INS. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

86 F. 102

SLADDEN v. NEW YORK LIFE INS. CO.

No. 440.

United States Court of Appeals, Seventh Circuit.

April 5, 1898

This action was brought by the plaintiff in error, S. C. Sladden as executor, to recover the amount of a policy of insurance upon the life of his wife, Mary, to whose executors administrators, or assigns the policy had been made payable. The declaration embodies a copy of the policy, which contains the usual clause making the written application, with its 'agreements, statements, and warranties,' a part of the contract. A number of pleas were interposed alleging breaches of warranty in that certain statements of the application were false. At the trial, the plaintiff according to the bill of exceptions, 'introduced in evidence the insurance policy, which is composed of four sheets. The first two pages are set forth in the plaintiff's declaration. The third and fourth pages are as follows. ' Then follows an 'abstract (e. & o. e.) of the application for insurance in the New York Life Insurance Co.,' consisting presumably of the usual questions and answers, followed by an agreement signed by the applicant, the first clause of which is as follows: 'That the statements and representations contained in the foregoing application, together with those contained in the declaration made by me to the medical examiner, shall be the basis of the contract between me and the New York Life Insurance Company that I hereby warrant the same to be full, complete, and true, whether written by my own hand or not; this warranty being a condition precedent to, and in consideration for, the policy which may be issued hereon. ' Immediately following this, as a part of the four pages of the policy introduced in evidence, is a copy or abstract of the 'declarations made to the medical examiner of the New York Life Insurance Company,' in which appear the following questions and answers: '(5) What is the name and residence of your physician? A. Have none. (6) What other physician have you consulted? A. Non. ' The plaintiff also put in evidence the formal proofs of death made to the company, including the certificates of physicians in attendance during the last sickness of the deceased. According to the certificate of Dr. H. Wallace, he attended Mrs. Sladden, in November, 1892, which was eight or nine months before the date of the policy, and 'the trouble for which the patient consulted was slight uterine congestion, which yielded to treatment within ten days, and during that time she was not confined to the bed or house, but was up about her duties and out of doors. I was then physician for the family for nearly a year, and during that period I was not called upon to treat her again, nor did I see a condition requiring treatment. Whatever the cause of death, it developed after she left my care and observation, which occurred in August, 1893. ' The certificate of Dr. E. Fletcher Ingalls contains the following questions and answers: '(4) How long have you known deceased? A. Not before first visit to my office. (5) How long had you been the medical attendant or adviser of the deceased? A. May 11, 1893, to October 2, 1893. (6) For what disease did you treat or advise deceased prior to her last illness? A. None. (7a) Did you attend deceased during her last illness? A. Yes. (7b) If so, for what disease? A. Consumption. (8) Date of her first visit to your office? A. May 11, 1893. (9) Date of her last visit to your office? A. Oct. 2, 1893. (11a) What disease was the immediate cause of death? A. Consumption. (11b) How long, in your opinion, did deceased suffer from the disease? A. From the fall of 1892. (14) When were you first consulted by the deceased, or by any relative or friend, for the affection which either directly or indirectly caused death? A. May 11, 1893. ' Dr. Wallace was called as a witness for the plaintiff, and testified that he had called himself the family physician of the deceased because he had treated her only the time stated, and at another time was called to Mr. Sladden's house when an accident had occurred to his father-in-law, and, when asked if that was all, answered: 'I base it as family physician on being called to the house for such medical work as might be needed.'

The plaintiff, being called in his own behalf, testified that on May 11, 1893, he went with his wife to the office of Dr Ingalls, and then was asked the following questions, to each of which the court sustained an objection: 'What did you go there for? ' 'What, if any, trouble was your wife suffering from then? ' 'What did Dr. Ingalls say she was suffering from at that time? ' 'What was your wife treated for at that time? ' 'Was she treated at that time for a slight cold? ' 'Was she suffering at that time from anything else than a slight cold? ' 'What was the condition of her health at that time? ' 'Did she within a few days recover entirely from what she went to consult Dr. Ingalls about at that time? ' 'Did that trouble affect in any way her general health? ' No statement was made when the questions were propounded and the bill of exceptions does not show what answer the witness was expected to make to any of the questions. The same witness, having stated that he was present when Dr. Brown, medical examiner of the defendant, examined Mrs. Sladden, was asked the following questions, to each of which objection was sustained: 'Did Dr. Brown ask her, what is the name and residence of your physician? ' The Court: 'Objection sustained, because it is the understanding of the court that whatever there was at this time was in writing, and that writing should be before the court before any allowance of any examination upon it. ' 'Did Mrs. Sladden write anything to Dr. Brown, or to the defendant? ' 'Did Dr. Brown write down anything at that time? ' Answer: 'to the best of my knowledge, yes. ' ...