Opinion
November, 1904.
Martin T. Nachtmann, for the appellant.
Hubert C. Stratton and William H. Sullivan, for the respondent.
The deceased had, at the time he took out the policy upon which this action is brought, warranted, among other things, that he had never had dizziness or vertigo, nor apoplexy; that he had not been sick since childhood, nor confined to the house by any illness since then, and that he had not consulted any physician. The defense was that all of such warranties were false. Concededly, on October 30, 1899, he had had an attack of some sort, and the principal question submitted to the jury was what was the condition of the deceased at that time — was his illness of such a substantial nature as to amount to a breach of the warranty given?
In her proofs of death which the plaintiff furnished to the defendant, and which she herself put in evidence on the trial, was her own statement that the deceased had a fainting spell at the shops on that day, and the statement of Dr. Roper, her physician, that he on that occasion treated the deceased for cerebral apoplexy, and that the attack lasted twelve days. Such "proofs" were evidence of the facts therein stated, and unless disproved constituted a defense to the action.
The plaintiff, in opposition, attempted to show that the illness at that time was of a very trifling character, no more than a slight nausea caused by seeing a young boy run over and mangled by the cars at the shops where he worked; that the deceased did not call Dr. Roper nor take the medicine which was left for him, and that he was practically recovered in the morning. Her theory was that it was not apoplexy, nor any ailment serious enough to amount to a breach of his warranty. And the jury have so found. And she went further, and testified that the doctor's attendance on this occasion was to treat her and not the deceased. To meet this claim the defendant sought to prove by Dr. Roper several things bearing upon the condition of the deceased on that October evening, most of which was excluded. It becomes important, therefore, to determine whether any of such testimony was improperly excluded, for, manifestly, if it was, it had a direct and important influence upon the jury's conclusion.
The offer to show what was the cause of the deceased's illness was excluded on the ground that it was privileged under section 834 of the Code of Civil Procedure. The defendant urges that such objection was waived by the plaintiff, because she herself put in evidence the doctor's statement of that condition. That question need not be discussed, for the reason that certain facts which it was clearly proper for the witness to give were then and there also excluded.
The defendant sought to show by Dr. Roper that upon the evening of October 30, 1899, he was called upon to attend the deceased in his professional capacity; also whether he at that time did so attend him; also whether he had any record of the dates when he attended the deceased in Norwich or elsewhere; also if he remembered how long the deceased was confined to his house in October, 1899; also to give the dates between October 30, 1899, and the 1st of April, 1900, when he was called in to attend the deceased, or when the deceased called at his, the doctor's, office to receive medical attendance from him. His answers to each of these inquiries were excluded, on the ground that they were prohibited by section 834 of the Code of Civil Procedure. This was error. Neither of them called for information that was in violation of such section. ( Patten v. United Life Accident Ins. Assn., 133 N.Y. 450.) Yet such information was manifestly pertinent to the issue being then tried and would doubtless have much weight in controlling the jury's verdict.
So also a hypothetical question was put to Dr. Roper, which he was erroneously prevented from answering. It was excluded (as the trial judge stated at the time he ruled upon it) because it assumed the fact that the deceased had cerebral apoplexy.
The statement in Dr. Roper's certificate of death, that the deceased did have cerebral apoplexy on October thirtieth, was direct evidence to that effect; and it was, therefore, proper to assume that fact in such a question put to an expert. There was some evidence to establish every fact assumed in such question, and, therefore, the doctor should have been allowed to answer the question. ( Guiterman v. Liverpool, New York Philadelphia Steamship Co., 83 N.Y. 358, 365; People v. McElvaine, 121 id. 250, 257.)
It was pertinent to show by an expert that if the deceased had an attack of cerebral apoplexy on October 30, 1899, he could not be "in sound health" on April 20, 1900, when the policy was delivered, and that thus, under the precise terms of the contract, the policy never became obligatory upon the defendant.
Hence the evidence excluded was not only proper but material, and we cannot say it was not harmful to the defendant.
For the foregoing reasons, without discussing any of the other alleged errors, this judgment and order must be reversed. Manifestly upon another trial much other evidence may be introduced by either party bearing upon the issue presented, and, therefore, we cannot now direct final judgment in the action. An order for a new trial must be entered, with costs to the appellant to abide the event.
All concurred; SMITH and HOUGHTON, JJ., in result.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.