Opinion
July 9, 1907.
Walter S. Jenkins, for the appellant.
Eugene L. Falk and J. Craig Roberts, for the respondent.
The judgment and order should be reversed and a new trial granted, with costs to appellant to abide event.
The action was brought to recover upon a policy of accident insurance for partial disability for a period of twenty-six weeks, by reason of an accident to the plaintiff.
The defenses interposed were:
First. Breach of warranty, plaintiff having stated that his weekly income was $300, which was untrue.
Second. Failure to give notice of the accident within ten days.
Third. Failure to furnish proofs of loss within thirty days. Fourth. Excessive recovery, twenty-six weeks at fifteen dollars per week.
The court directed a verdict for plaintiff, leaving only damages to be assessed by jury.
As to the first defense, the representations were warranties under the terms of the policy. He stated his income was $300 per week, and upon the evidence of the plaintiff himself given on the trial this was untrue. He had no such income. This would seem to have been a perfect defense to the action. ( Dwight v. Germania Life Ins. Co., 103 N.Y. 341.) There does not seem to be any adequate answer made to this defense, on the argument, except that the statement was inadvertently made. It was made, however; was a warranty; the policy was issued in reliance upon it; and it being untrue, the policy is not enforcible.
It is said also that both parties having moved for the direction of a verdict, the court and not the jury had the right to find the facts. But this rule did not authorize the court to find a fact without evidence or directly contrary to the evidence. There was no dispute as to the facts constituting this defense, and the law is well settled.
We think there was a failure to serve the ten-day notice and to furnish the proofs of loss within thirty days, as required by the terms of the policy. Whether there was any waiver may well be doubted. Certainly the damages were excessive in any view of the case. Plaintiff was not entitled to full twenty-six weeks' indemnity at fifteen dollars per week, the highest figure possible to fix. The rate per week should at least have been much less.
There are abundant reasons for granting a new trial in the case.
All concurred.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law and fact.