Opinion
October 25, 1943.
Action to recover payments for total and permanent disability pursuant to the terms of two insurance policies, and to recover premiums paid on those policies under protest by the insured. Judgment of the City Court of Yonkers in favor of plaintiff, entered upon a jury verdict, reversed on the law and facts and a new trial ordered, with costs to appellant to abide the event. The verdict, in our opinion, is against the weight of evidence insofar as implicit therein is a finding that there was justification for respondent's refusal to submit himself to insulin treatment for diabetes, which refusal appears from the greater weight of evidence to have been without legal basis for the reason that, according to such evidence, when such treatment is properly administered no harmful results from the use of the drug are to be anticipated. The respondent, in the light of the law of this case as set forth in Papas v. Equitable Life Assur. Soc. ( 265 App. Div. 128), failed to establish permanent disability by a fair preponderance of the evidence. Further, reversible error was committed on the trial in the admission, over appellant's objection and exception, of testimony relating to the illness from diabetes and death of respondent's brother, Peter Papas, after an operation, and as to respondent's reactions and fears because of the untoward result of his brother's illness and operation. Close, P.J., Hagarty, Taylor and Lewis, JJ., concur; Carswell, J., concurs in the result.