Forame v. Metropolitan Life Insurance , 248 A.D. 621 ( 1936 )

In this action on an insurance policy the insured died of heart disease one month after the policy was issued. The insured had misstated Ms age at forty-eight when in fact he was about fifty-eight years of age at the time the policy was issued. The policy contained the usual provisions that if the insured was not in sound health or had had certain enumerated diseases, not declared, or had been treated by a physician witMn two years prior to the issuance of the policy, the company might declare the policy void and be excluded from liability. On the trial the plaintiff testified in answer to a question by the court that a certain doctor had never treated her husband (the insured) for any sickness. The physician named testified that he had been called to the home during the two months preceding the death of the insured and treated Mm; and had seen Mm three or four times, finding the man lying in bed. Tins presented a bare question of fact which apparently the Municipal Court judge determined in favor of the plaintiff. The defendant called an expert for the purpose of showing that the insured was suffering from heart disease prior to the issuance of the policy. The hypothetical questions framed and the testimony given were not based on facts concerning the insured, but were in the abstract in relation to “ a man.” Therefore, the testimony is not directed to proof that the insured had been suffering from heart disease prior to his application. Order of the Appellate Term reversing the judgment of the Municipal Court, Borough of Brooklyn, Eighth District, and dismissing the complaint reversed on the law and a new trial ordered in the Municipal Court, with costs to abide the event. There should be a deliberate consideration of the evidence bearing on the questions of fact on a new trial. Lazansky, P. J., Carswell, Davis, Adel and Taylor, JJ., concur.