Opinion
June 22, 1928.
Perkus Pesachowitz, for the plaintiff.
Grout and Grout, for the defendant.
Plaintiff, an administrator, sues upon an industrial insurance policy which had been issued upon the life of his mother.
It is a known fact that these policies are issued without a physical or medical examination of the insured, reliance being had for protection upon the conditions and stipulations of the policy. Hence, the terms of the policy cannot be lightly regarded or rashly disregarded.
Among the express conditions of the policy we find: "Proofs of death shall be made upon blanks to be furnished by the Company and shall contain the answer to each question propounded to the claimant, to physicians and to other persons, and shall contain the record, evidence and verdict of the coroner's inquest if any be held. All the contents of such proofs of death shall be evidence of the facts therein stated in behalf of, but not against the Company."
And the importance of compliance with these conditions is emphasized by the fact that "The Company may declare the policy void, and in such event its liability shall be limited to the return of the premiums paid on the policy, * * * If within two years before the date the insured has been attended by a physician for a serious disease or complaint, or before said date has had any pulmonary disease, or chronic bronchitis, or cancer, or disease of the heart," etc.
That these conditions and provisions are to be given full force and effect is no longer open to dispute, for this precise question has been the subject of a legal determination by a learned justice of this court whose opinion has received the sanction of both the Appellate Term and the Appellate Division. (See Cirrincioni v. Metropolitan Life Ins. Co., 223 A.D. 461. )
While a physician who might have attended the deceased in her lifetime would be prohibited from testifying to the nature of her ailment in the absence of the statutory waiver, notwithstanding the provisions of the policy, still it seems to be the settled law that a plaintiff in a case of this kind is required both to plead and prove as a condition precedent to recovery that proofs of death on blanks furnished by the company have been duly filed; and this in spite of the fact that some of the recitals in the proofs could not be testified to in court by the physicians who certify the same. ( Cirrincioni v. Metropolitan Life Ins. Co., supra; Acee v. Metropolitan Life Ins. Co., 219 A.D. 246.)
While this appears to be an anomaly, yet apparently it is the law. Under this ruling there is little room for the contention that the condition requiring the filing of these proofs is unreasonable, especially in the case of industrial policies where no medical examination is made upon the issuance of the policy.
The original complaint in this action proceeded on the theory of due performance by the plaintiff. Upon the trial the complaint was amended so as to allege substantial compliance with the reasonable requirements. The plaintiff declined and refused to amend his pleading so as to claim any waiver of the provisions of the policy by the company. The defendant in turn amended its answer so as to meet the issue created by the changed plea of the plaintiff.
The plaintiff now seeks to be excused from compliance with the condition requiring proofs to be filed upon the blanks furnished by the company, on the theory of a waiver based upon a letter which rejected the claim when first presented by the plaintiff in his individual capacity.
However, it appears that any original rejection of the claim in the course of correspondence with the plaintiff prior to his appointment as administrator was apparently retracted when the company subsequently, in response to the specific request of this plaintiff's attorneys, sent to his attorneys the blanks required and asked their return properly filled out so that consideration might be given to the claim. The plaintiff cannot now claim that the original so-called rejection misled him or caused him to change his position or forfeit any rights.
Under such circumstances I do not believe the claim of waiver can be sustained.
Judgment for the defendant. Five days' stay.