2. INSURANCE (§ 291*)-LIFE INSURANCE-WARRANTIES-BREACH-EVIDENCE. A warranty in a health policy, stipulating that insured has not been disabled and has not received medical attention within five years, must be construed in the light of the purpose of the warranty to convey to insurer knowledge of all serious disabilities from which the applicant for insurance has suffered during the past five years, and the warranty has no reference to a temporary illness resulting from influenza and tonsilitis, though insured, in an application to the board of education of a city for leave of absence with pay on account of illness, described the illness as "serious personal illness," and though he subsequently expressed his opinion that such illness was the forerunner of a subsequent illness. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 681-690, 694– 696; Dec. Dig. § 291.*] 3. INSURANCE (§ 668*)—LIFE INSURANCE-WARRANTIES-BREACH-EVIDENCE. Whether warranties in a health policy, stipulating that insured had not been disabled nor received medical attention within the past five years, were violated, so as to defeat a recovery on the policy, held, under the evidence, for the jury. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1556, 17321770; Dec. Dig. § 668.*] Appeal from City Court of New York, Trial Term. Action by Abraham Smith against the Travelers' Insurance Company. From a judgment for defendant, rendered in the City Court of the City of New York, plaintiff appeals. Reversed, and new trial ordered. Argued April term, 1912, before SEABURY, GUY, and GERARD, JJ. Morrison & Schiff, of New York City (Jacob R. Schiff, of New York City, of counsel), for appellant. William J. Moran, of New York City, for respondent. GUY, J. The plaintiff herein appeals from a judgment dismissing the complaint in an action brought to recover under a policy of health insurance issued by defendant to plaintiff against disability by disease. The policy provides that "for the term of continuous disability during which the plaintiff shall independently of all other causes be necessarily confined to the house, and totally disabled and prevented by bodily disease, not excepted under such policy, from performing any and every kind of duty pertaining to his occupation," he is to receive a weekly indemnity of $25. Plaintiff proved that in November, 1910, after the policy was issued, he was taken ill with a nervous disease and totally disabled for the term of 272 weeks. The answer contains a general denial, and a separate defense of the breach of three warranties made by plaintiff at the time of the issuance of the policy. These warranties are as follows: "L. I am in sound condition mentally and physically. * never had, nor am I now suffering from or subject to, or mental infirmity or deformity, except as herein stated." I have * any bodily "O. I have not been disabled, nor have I received medical or surgical attention, within the past five years." "P. Last physician consulted was none in five years." *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes On cross-examination of plaintiff, it developed that in May, 1909, prior to the issuing of the policy of insurance by defendant to plaintiff, plaintiff made a written application to the department of education for a leave of absence, with pay, on account of his absence from school work from May 10 to May 21, 1909, in which application he stated that he was away on account of "serious personal illness." Attached to the application was the certificate of a physician that plaintiff's illness was influenza and tonsilitis. Plaintiff testified that he did not know or remember, at the time the policy was issued, of this illness in May, 1909. Defendant also introduced in evidence a letter, admitted to have been written by the plaintiff to the district superintendent of schools in May, 1910, in which he stated that his record of attendance, prior to May, 1909, was good, and that the 15 days' absence in May, 1909, was but a forerunner of the illness from which he suffered from November, 1909, to May, 1910. Plaintiff, in rebuttal, stated that the nature of his illness in May, 1909, was that he had a severe cold and that he was worried, that his throat was very sore, that he found difficulty in talking, and that he had a running nose and a cold in the head. His physician testified that what he meant by the certificate that plaintiff's illness was influenza and tonsilitis was "grippe' or a 'cold.' We generally call it 'la grippe.' The nature of the tonsilitis that I spoke of generally goes with the grippe. It consisted of a redness of the throat and little follicles in the tonsils. The tonsilitis was simply the result of the cold. I don't remember whether I examined him. He did not call me to examine him. I don't remember whether I examined him. I was at the house during the day and treated his wife, and he complained of having a bad cold; but I don't remember having examined him or having prescribed for him. I certified in the paper to what I saw from the visit to his home." At the close of plaintiff's case, on this evidence, the learned trial justice dismissed the complaint, holding that the application made to the department of education, and the certificate attached thereto, established a violation of warranties O and P of the policy. [1] It is clear that this certification by the physician, without an examination of the plaintiff, and in the absence of evidence that the plaintiff consulted him for the purpose of being treated by him as a physician, established no violation of warranty P. [2] As to warranty O, "I have not been disabled nor have I received medical or surgical attention within the past five years," this warranty must be construed in the light of the purpose for which it was made, viz., to convey to the assurer full knowledge of all serious disabilities from which the person applying for insurance has suffered during the previous five years. Unless it is to be assumed that the business of health insurance is conducted solely for the profit of the insurance companies, without any corresponding possibility of benefit on the part of the assured, it cannot be supposed that the warranty had reference to any such temporary illness as the evidence shows the plaintiff suffered in the month of May previous to the issuing of the policy. Though in his application to the board of education the plaintiff described it as a serious personal illness, that is but an expression of his opinion, not from a medical point of view, or the point of view of obtaining insurance, but as a compliance with certain established rules of the department of education regulating the pay of its employés. There is no evidence that the disease was of a nature which seriously disabled him, or such as left any serious effects having a bearing upon the purpose and meaning of the policy. His subsequently formed, and subsequently expressed, opinion, in May, 1910, that the illness of May, 1909, was the forerunner of the illness in November, 1909, is also but an expression of opinion of one not an expert, and having no probative value or force. In Cushman v. United States Life Ins. Co., 70 N. Y. 72, the Court of Appeals say: "In construing contracts, words must have the sense in which the parties used them; and to understand them as the parties understood them, the nature of the contract, the objects to be attained, and all the circumstances must be considered. By the questions inserted in the application, the defendant was seeking for information bearing upon the risk which it was to take, the probable duration of the life to be insured. It was not seeking for information as to merely temporary disorders or functional disturbances, having no bearing upon general health or continuance of life. Colds are generally accompanied with more or less congestion of the lungs, and yet in such a case there is no disease of the lungs which an applicant for insurance would be bound to state. * * In construing a policy of life insurance, it must be generally true that, before any temporary ailment can be called a disease, it must be such as to indicate a vice in the constitution, or to be so serious as to have some bearing upon general health, * as according to common understanding would be called a disease." or such This is no reason why this same principle should not apply in construing the policy of health insurance. The purpose of the questions which the assured is required to answer does not contemplate that he shall establish, before he can enter into such a contract of insurance, that he has never suffered from any temporary illness or slight disability. As before intimated, if such construction is to be placed upon health policies, it would be the duty of the state to forbid the making of such policies. They would be in fact but traps for the unwary, from which the insured could derive no possible benefit. In the case of Bancroft v. Home Benefit Association of New York, 120 N. Y. 20, 23 N. E. 999, 8 L. R. A. 68, the same learned court say: "It is insisted by the counsel for the defendant that, if the injury was considered serious at the time, it is one which must be mentioned in reply to the interrogatory. * But there are grave and obvious difficulties in this construction. The accidents resulting in personal injuries, which, at the moment, are considered by the parties serious, are so very numerous that it would be almost impossible for a person engaged in active life to recall them at the age of 40 or 50 years, and if the failure to mention all such injuries must invalidate the policy, very few would be sustained. * * If the party gets over the injury completely without leaving any ill consequences in a few days, it is clear that the serious aspect of the case was not a true one." [3] The court further holds that it was for the jury to decide, under all the circumstances of the case, whether there was a violation of the warranty. In holding, as matter of law, that the application made by the plaintiff to the department of education, and the certificate of the physician attached thereto, constituted a violation of war ranties O and P of the policy, the learned trial justice committed serious error. It is doubtful whether, in the light of the explanations given by the plaintiff as to the circumstances under which the application and certificate were made, these facts, unsupported by further evidence on the part of the defendant, would constitute any defense. to plaintiff's cause of action; but, in any event, it was error to hold that, as matter of law, the evidence established a breach of warranty on the part of the plaintiff. The judgment must therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur. CULLEN v. THOMAS et al. (Supreme Court, Appellate Division, First Department. May 3, 1912.) 1. MASTER AND SERVANT (§§ 302, 329*)—LIABILITY OF MASTER-SCOPE of ServANT'S AUTHORITY. Although plaintiff was injured by an automobile run by defendant's servant, defendant is not responsible for the negligence of the driver, unless plaintiff allege and prove that the driver was engaged upon his master's business, and acting within the scope of his employment. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 12171221, 1225, 1229, 1268, 1269; Dec. Dig. §§ 302, 329.*] 2. MASTER AND SERVANT (§ 330*)-PRESUMPTIONS. In an action by one injured by an automobile, where it is not shown that the machine belonged to defendant, no presumption of negligence is raised against him. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1270-1272; Dec. Dig. § 330.*] Appeal from Trial Term, New York County. Action by Matthew Cullen against Ralph Thomas and another. From judgment for plaintiff and order denying his motion for a new trial, the named defendant appeals. Reversed and remanded. Argued before INGRAHAM, P. J., and MCLAUGHLIN, CLARKE, SCOTT, and DOWLING, JJ. George F. Lewis, of New York City, for appellant. SCOTT, J. The action is for damages caused to plaintiff by being run over by an automobile. The evidence of plaintiff's freedom from contributory negligence is of the slightest, and, if there were no other question in the case, it would be difficult to sustain the judgment. There is, however, a much more serious question, and one which is decisive of this appeal. It is sought to hold the defendant liable because the person driving the automobile and whose negligence is said to have caused the injury was the servant of the defendant. [1, 2] No proof was offered as to the ownership of the automobile, and the only proof of the relation between defendant and the driver was the admission, by failure to deny, of the allegation in the complaint that "plaintiff was struck and run over by an automobile oper *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes ated by the agents and servants of the above-named defendants." It is manifest that this allegation is not sufficient to fasten responsibility upon defendant for the negligence of the driver, for there is no allegation, or proof, that the driver, although he may have been the defendant's servant, was engaged upon his master's business and acting within the scope of his employment, and some proof to this effect was necessary in order to charge the master with his servant's negligence. See Cunningham v. Castle, 127 App. Div. 580, 111 N. Y. Supp. 1057, and cases cited. There was not even proof that the automobile belonged to the defendant so as to raise a presumption of liability on his part. Stewart v. Baruch, 103 App. Div. 577, 93 N. Y. Supp. 161. There was, therefore, neither allegation nor proof of the necessary facts to charge the appellant with the negligence imputed to the driver of the automobile, and the complaint should have been dismissed, as the appellant repeatedly moved that it should be. The judgment and order appealed from must be reversed and a new trial granted, with costs to appellant to abide the event. All concur. In re MURPHY. (Supreme Court, Appellate Division, First Department. May 3, 1912.) 1. JUDGMENT (§ 290*)-FILING TRANSCRIPT OF INFERIOR COURT-COMPELLING ACTION BY COUNTY CLERK. The county clerk in filing in his office a transcript of a judgment of an inferior court acts as a county officer, and not as clerk of the Supreme Court; so that the Supreme Court has no other jurisdiction over him than it has over other state and county officers, which is to require them by a proper state writ, and not by an order on a mere motion, to perform their duties. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 571; Dec. Dig. § 290.*] 2. JUDGMENT (§ 290*)-FILING TRANSCRIPT OF INFERIOR COURT-NOTICE TO JUDGMENT DEBTOR. Notice of application to compel the county clerk to file in his office the transcript of a judgment of an inferior court, rendered several years before, should be given such debtor, he being at least entitled to show before a lien is thus created against his property that the judgment had been paid or otherwise discharged. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 571; Dec. Dig. $290.*] 3. JUDGMENT (§ 290*)—MUNICIPAL COURTS-FILING TRANscript of JUDGMENTS -STATUTES. Within Municipal Court Act (Laws 1902, c. 580) § 20, providing that the provisions of the Code of Civil Procedure shall apply to the Municipal Court so far as they can be made applicable, and are not in conflict with such act, Code Civ. Proc. § 3017, limiting to six years from rendition of judgment the time within which the transcript of a justice's judgment may be filed with the county clerk, with the effect of making it a judgment of County Court, is not in conflict with Municipal Court Act, § 261, providing that the county clerk on presentation of the transcript of a judgment of the Municipal Court shall file it, with the effect of making the judgment one of the Supreme Court; and so supplement it as to the *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |