Buffalo Loan, Trust & Safe-Deposit Co. v. Knights Templar & Masonic Mutual Aid Ass'n

Corlett, J.

In June, 1879, John Roberts became a member of defendant, which issued to him a certificate to the effect that it would pay to said Roberts, his heirs, executors, or administrators, the sum of $5,000 within 69 days after notice and satisfactory proof of his death. Roberts died in January, 1885, leaving one son, Frank Roberts, his only heir. Proof of death was furnished to the defendant; and, in the certificate of the physician who attended him was the statement that John Roberts died from delirium tremens, which, if true, would have avoided the policy. The company refused to pay, and soon after this action was brought. The cause was tried in February, 1889, before Justice Lewis and a jury. The trial resulted in a" verdict for the plaintiff, upon which judgment was entered, and the defendant appeals.

It was a part of the contract that, “ upon due notice and satisfactory proof of the death of a member of the association, the finance committee shall, within sixty days, pay,” etc. There is nothing in the contract of insurance *347 which requires that those representing the deceased should state, in their notice of death, its cause. In this case the physician who attended the deceased during his last illness certified to a cause of death, which, if true, would have defeated a recovery. On the trial, that part of the doctor’s certificate stating the cause of death, on objection, was excluded, and the defendant’s counsel excepted. The leading contention of the learned counsel for the defendants is that this was error. It is obvious that the ruling of the trial justice on this point was correct. The only duty which devolved upon the plaintiff was to prove death. Its cause is a matter of defense, which must be proved by common-law evidence. Goldschmidt v. Insurance Co., 102 N. Y. 486 , 7 N. E. Rep. 408. The president of the company admitted that he was notified of the death of Roberts, and that proof of death was furnished, which was in defendant’s possession at the trial. These facts were testified to by the president of the company without objection. Afterwards the defendant moved to strike out his testimony on that subject, which was denied, and defendant excepted. It was not error to refuse to strike out that testimony. Sherman v. Scott, 27 Hun, 331 -334; Hincken v. Insurance Co., 50 N. Y. 657 .

There is no rule making the records or books of the board of health evidence as to the cause of death in the trial of an action at law, where that question is material. Ho thing but common-law evidence would defeat a recovery, in the absence of a statute or constitutional provision making other evidence competent. There is no law making the records of the board of health of the city of Buffalo evidence upon a trial between parties who do not make the records or books, and have no duty devolving on them on that subject. Ho errors were committed on the trial, and the judgment must be affirmed. All concur.