Valentini v. Metropolitan Life Insurance

Citations

• 106 A.D. 487
• 94 N.Y.S. 758
• 1905 N.Y. App. Div. LEXIS 2613

Syllabus

<p>When a cross-examination of a plaintiff to establish an affirmative defense makes him the defendant’s witness — life insurance — breach of warranty is an affirma- ' tive defense — warranties strictly construed — attendance by a physician within two years — the disorder must have been substantial — consultation with the physician by a third person — the question whether he was “ afflicted at that time and needed medical attention” calls for a conclusion—proof that the assured attended to his business regularly.</p> <p>Where the plaintiff in an action is sworn as a witness in her own behalf, if the defendant, upon cross-examination, elicits from her matter relating solely to an affirmative defense interposed by the defendant, the plaintiff, in respect to such matter, becomes the defendant’s witness, and the testimony given by her in respect thereto is to be weighed as affirmative evidence introduced by the defendant to establish his defense.</p> <p>In an action upon a policy of life insurance, a defense of a breach of warranty by the insured is an affirmative one which the. defendant is bound to establish.</p> <p>Warranties in insurance policies are to be strictly construed. They will not be extended to include anything not necessarily implied in their terms, and when the language may be understood in more senses than one, it is to be construed in the sense in which the insurer had reason to suppose it was understood by the assured.</p> <p>An application for a policy of life insurance contained the following:</p> <p>“4. The following is the name of the physician who last attended me, the date of the attendance, and the name of the complaint for which he attended me. Dr. Goodwin; Rheumatism, 1898.</p> <p>“ 5. I have not been under the care of any physician within two years, unless as stated in previous line.”</p> <p>Held, that, before the court would be justified in holding that the fact that the insured had been attended b\\ a physician within two years prior to th