SLADDEN v. NEW YORK LIFE INS. CO., 86 F. 102

WOODS, Circuit Judge, after stating the case as above, delivered the opinion of the court. No exception having been saved to the peremptory instruction upon which the verdict was returned, the ninth specification of error, instead of being sufficient to bring the whole case before the court, presents no question whatever; and, unless there was error in excluding material evidence, the judgment below must be affirmed. We have considered the meaning and application of rule 11 in a number of cases, and in U. S. v.

Indian Grave Drainage Dist., 85 Fed. 928, have explained that, when an exception is to be saved to the exclusion of testimony, a statement should be made to the court at the time of the ruling, or before the conclusion of the trial, of the facts expected to be elicited from the witness in answer to the overruled question, the statement set forth in the bill of exceptions, and the substance of it in the specification of error, as required by the rule.

The rule has not been complied with in this case, but, disregarding that objection, we deem it clear that no error was. committed of which the plaintiff in error may justly complain.

It is perhaps true, as urged, that the plaintiff made a prima facie case by introducing the policy of insurance as set forth in the declaration, by showing the payment of the premium, proving the death, and showing that tlie required proofs of death had been submitted to the. company; and it may be that it was not necessary for the plaintiff to have put in evidence the third and fourth pages of the policy, containing the abstract of the application for insurance (Insurance Co. v. Rogers, 119 Ill. 485, 10 N. E. 242; Insurance Co. v. Kessler, 84 Ind. 310; Insurance Co. v. Ewing, 92 U.

S. 377); but the plaintiff having chosen to put in evidence the abstract of the application and medical examination as set forth upon the policy, without asserting any mistake or inaccuracy, the presumption is that they were correctly abstracted or copied, and, as against the plaintiff, they were competent evidence of the contents and of the execution and genuineness of the originals; and if the proof so made showed a breach of warranty or the falsity of a material representation, as alleged in any of the pleas, the court was right in taking the case from the jury.

While the medical examination is nol. mentioned by name in the policy, it is expressly made a part of the application, which is made a part of the policy. That the application in important particulars was false is established by the certificates of physicians introduced in evidence by plaintiff as part of the proofs of death. So introduced, we have no doubt that the certifícales, though not conclusive, were competent evidence against the plaintiff of (he facts slated in them. What the significance of (he certificate of I)r. Wallace is need not he considered. The importance of that of Dr. Ingalls is evident.

It means that the insured visited him first on May 11, 1893, and from that date until the ensuing October 2d he was her medical attendant; that he treated her for no disease, but that she liad consumption, and, in his opinion, had had it since the fall of 1892. If it was competent or possible to do if, no adequate attempt was made to remove or break the force of tiiat statement. Dr.

Ingalls was not called, and the questions which the plaintiff, as a witness in his own behalf and interest, was not allowed to answer, were directed to the condition of his wife at Hie time of the first visit only, and to the fact, suggested by two of the questions, that she soon recovered from the slight cold which she then had. If received, full answers to the questions propounded would not have covered the period of her virile to Dr.

Ingalls between May 11th and July 2!)ih, wh(‘n the policy of insurance was issued, and therefore could not have shown an excuse, if excuse were possible, for the failure to state in her application that during that time she liad been in attendance at the office and under the advice of Dr. Ingalls, as shown by his statement.

The proposition is asserted, and many citations made of authorities to support it, that “a warranty in an insurance policy is not violated where the insured omitted to mention treatment for a slight cold or temporary ailment or disorder which was cured at the time of the ap-pdication for insurance, and which left no taint or vice in the constitution or general health of the applicant.” But, if conceded in the fullest scope of its terms, the proposition does not meet ibis case, where one who had consumption went, according to the implications of the questions propounded, to a physician on account of a slight cold, of which she recovered in a few days, but for near three months thereafter, before the policy was taken out, according to the physician’s statement,' made visits of which no explanation was offered.

Neither would the untruthfulness of the answer in respect to Dr. Ingalls have been mitigated if it had been shown that the medical examiner lold Mrs. Hadden that he did not wish her to mention any slight cold or accident she may have had. and the physician whom she had consulted, and that she should answer only grave or serious matters.

The impropriety, not to say absurdity, of permitting an applicant for insurance to determine what matters of health, which at the time were deemed grave enough to go to a physician about, were too slight and unimportant to mention to a medical examiner when applying for insurance, could noi well be emphasized more strongly than by the facts of this case; but, if the rule admitting such evidence were conceded, it could not apply when, as here, for near three months after the slight cold had gone there was a continued and unexplained attendance upon a physician, who, perceiving the presence of an incurable disease, prescribed no treatment whatever, and gave advice only.

The question has been discussed, but need not now be considered, whether the decision in Insurance Co. v. Fletcher, 117 U. S. 519, 6 Sup. Ct. 837, has been modified by the later opinion in Insurance Co. v. Chamberlain, 132 U. S. 304, 10 Sup. Ct. 87. The judgment below is affirmed.