Opinion
December 28, 1911.
Joseph W. Middlebrook [ Alfred M. Bailey with him on the brief], for the appellant.
Thomas F. Curran, for the respondents.
While each of these cases is distinct from the other, they were tried by the same attorneys and the questions presented are substantially the same. They were submitted together, and but one discussion seems to be necessary. The plaintiffs in both cases seek to recover upon industrial insurance policies, one of them on the basis of the payment of ten cents per week and the other upon twenty-five cents per week, and the defense in both cases is that there were misrepresentations of material facts in the applications; that the applicants warranted the representations that they were in good health and had not been afflicted with tuberculosis or other fatal maladies. In each case this defense was met by the testimony of witnesses, conceded to have been present when the application was signed, who stated that none of the questions relating to health were asked of the applicant, but that the blanks were filled in after the signatures were obtained, and not in the presence of the insured. There was a conflict of evidence upon these points, but it cannot be said that the verdict of the jury in favor of the plaintiffs is not supported by the evidence, and it is not customary for this court to overturn a verdict where the testimony is conflicting, and especially in this class of cases, where common experience teaches that the methods employed are in entire harmony with the testimony. Here the evidence indicates that the agents secure the application, and the company's doctor goes around and makes an "inspection," which is merely a hasty observation of the applicant, and in the case of the ten-cents-per-week applicant no pretense of a medical examination is made. Knowing the informalities in common vogue in the transaction of business, and taking into consideration the anxiety of agents to get applications filled, and the necessarily small commissions to be earned, it is easy to understand how the work of filling out the blanks would be undertaken by the agent without going to the trouble of making the detailed examination which is required by the form. His work is to get the signature; this once done, the filling out of the answers is simple, and if the company's agent neglects to get the information which, upon its face, would vitiate any policy written, and accepts the insured's weekly contribution, there is no reason in law why the company should not fulfill its contract.
The judgments and orders appealed from should be affirmed, with costs.
JENKS, P.J., HIRSCHBERG, WOODWARD and RICH, JJ., concurred; THOMAS, J., concurred in result.
In each case judgment and order of the City Court of Yonkers affirmed, with costs.