Boos v. World Mutual Life Insurance Co.

Rapallo, J.

Two of the points upon which the appellant relies on this appeal, viz., the falsity of the statement of the assured, that his occupation was that of a gardener, and the falsity of the statement that Dr. Hertzog was his family physician, do not appear to have been taken at the trial.

The motion to dismiss the complaint was based upon two grounds only, viz., that a breach of warranty had been shown in the answers to the questions as to whether the assured had had any of the diseases, etc., mentioned in the questions; also that the evidence was uncontradicted as to his having had *240 pneumonia and sunstroke. No allusion was made to the statements respecting the occupation of the assured, or who was his family physician.

The judge charged the jury that if any of the answers made by the assured, to the questions contained in the application, were false, whether the assured knew them to be so or not, the policy was dead; and he enumerated and read to the jury the answers whicli were claimed by the defendant to be false. In making this enumeration he omitted any reference to the answer as to the occupation of the assured; but no objection was made by the defendant’s counsel to such omission; nor was any request made' that any thing be submitted to the jury on that point. The judge did embrace in the enumeration the answer as to the family physician; but no exception was taken to the submission of that question to the jury, although exception was taken to the submission to them of the question of the falsity of the answers in regard to the previous sickness.of the assured and to various parts of the charge in reference to his illness, diseases, etc.

At the close of the case, after numerous requests to charge and exceptions, the defendant requested the court to charge that, upon the policy and the evidence the plaintiff could not recover any thing beyond the amount of the last premium paid, with interest; and the defendant now claims that this general request was sufficient to raise the two points now under consideration. We think not. Rulings tending to the same result had been asked for on various points which were specified. After these rulings had been refused, the defendant could not, by this general request, entitle itself to raise on appeal points which had not been specified, and which, if the attention of the court had been called to them, might have been met by further proof on the part of the plaintiff. In no part of the trial were any questions of law relating to these two answers specifically raised or passed upon, and it is too late to raise them here for the first time.

The next point taken on this appeal is, in substance, that the judge erred in submitting to the jury the question *241 whether there had been a breach of warranty in respect to the previous illness of the assured. It is claimed that the proof was uncontradicted that he had had pneumonia, in 1865, which lasted ten days, during which he was attended by a physician, and that he had sunstroke in 1863, or 1865 ; and the defendant’s counsel contends that this was conclusive proof of the falsity of his answer to the question whether he had during the last seven years had any severe sickness or disease. The policy was issued in March, 1870.

We think that the judge was not bound to determine, as matter of law, that these were severe sickness or diseases within the meaning of the question propounded by the company. They were not among the diseases enumerated in the interrogatories contained in the application; and we think that whether they were severe, within the meaning of the question, was matter of fact which was properly left to the jury. As to the sunstroke there was no medical testimony, but only that of a sister of the plaintiff, who said that the deceased had a sunstroke in 1863 or 1865, and was sick then eight or ten days. She was not shown to be competent to judge even whether it was in fact a sunstroke, and certainly the judge was not required to decide, as matter of fact, that it occurred within seven years before the date of the application, which was March 27,1870, the witness stating only that it was in 1863 or 1865. As to the pneumonia, the evidence was that it lasted ten days, during which the deceased was attended by a physician ; and the judge was in various forms requested to decide that this constituted a breach of warranty, which he declined to do. These requests not only required the judge to find, as matter of fact, that the illness testified to by the physician, was severe, but also to disregard the testimony of various witnesses who testified to the condition of the health of the assured during the period in which the illness was located, and to his being a sound, healthy man, performing work requiring considerable strength. The judge left the question to the jury, and in so doing we think he committed no error.

*242 It is further urged that the General Term erred in holding that they could not set aside the verdict as against the weight of the evidence — the appeal being from the judgment only. In this the General Term was clearly right; an appeal from the judgment, when the trial is by jury, brings up questions of law only. (Code, § 348.) A motion for a new trial on the evidence can only be made at the Circuit or Special Term. (Id., § 265.) And from the order granting or refusing such new trial, an appeal may be taken to the General Term. (Id., § 349.) This is the only mode in which the General Term can acquire jurisdiction to review a case upon the facts, when the trial is by jury.

In the present case there does not appear to have been any appeal from an order refusing a new trial, but only an appeal from the judgment. The case states that after the verdict was rendered, the defendant moved for a new trial, on the judge’s minutes, and that the motion was denied, and. an exception taken. But such an exception is not available for any purpose. On trials by jury the only subjects for exceptions are rulings at the trial. The motion for a new trial is a proceeding subsequent to the trial, and the order made on such motion is re viewable only by appeal.

The judgment must be affirmed.

All concur.

Judgment affirmed.