James Douler, Respondent, v. The Prudential Insurance Company of America, Appellant

James Douler, Respondent, v. The Prudential Insurance Company of America, Appellant. Second Department, March 28, 1911. Evidence—fraud in procuring insurance—presumption from identity of names — record cards kept by physician. Where an insurance company sued on a policy of life insurance defends upon the ground that the insured made false representations as to her state of health, a record card made by a physician in a hospital showing that a woman of the same name as the insured and residing on the same street was treated by him should not be excluded on the sole ground that there was not sufficient proof of identity between the insured and the patient, for the similarity of name is prima facie proof of identity. The court on appeal will assume that the contents of such card were material to the issue although there was no proof of what the contents were, if it was excluded on the plaintiff’s objection which did not raise any question of materiality. Such record card is not competent evidence of its contents as a record, yet it becomes admissible when it is shown that the entries thereon were made by a witness at the time the events described took place in his presence, were honestly made by him, and that he no longer has any personal recollection of the facts. The exclusion of such record card cannot he deemed harmless error where the jury by rendering a verdict for the plaintiff disregarded other evidence that she had tuberculosis before the application for the policy and had been so informed by physicians. Woodward and Rich, JJ., dissented. Appeal by the defendant, The Prudential Insurance Oompany of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of October, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18tli day of October, 1910, denying the defendant’s motion for a new trial made upon the minutes. Alfred M. Bailey [Solon Weit with him on the brief], for the appellant. Charles A. Ludlow, for the respondent. [MAJORITY — Carr, J.:] Carr, J.: The defendant appeals from a judgment entered upon the verdict of a jury at a Trial Term in Kings county. The action was on an insurance policy on the life of one Margaret Douler for the sum of $1,000, in which the plaintiff was named as beneficiary. The defense was that defendant had been induced to deliver the policy by certain fraudulent representations made by the insured in a written application for the policy. This application was ¿made on July 22, 1909. In form it consisted of certain questions to the applicant and her answers thereto. Among the questions and answers were the following: “ 5. a. Are you in good health ? Tes. b. Have you, so far as you know, ever had any serious illness, or disease % Ho.” The defendant undertook to prove that at the time of the application and for a considerable period before, the insured was suffering from pulmonary tuberculosis, and that she knew of such condition of her health. In an attempt to prove this defense, a Dr. McGroldrick was called as a witness by the defendant. In 1908 he was a physician in attendance at a public dispensary in the borough of Brooklyn, known as the “ Polhemus Memorial Clinic.” In that capacity he had made certain entries on a record card, which contained answers to questions put by him to a woman patient who had given the name of Margaret Douler. This was likewise the name of the insured. This woman patient was sufferingfrom some ailment. The card contained an address of the woman patient as a resident of Sackett street, Brooklyn. The insured at one time, in 1908, resided on the street so indicated. This address, however, was not put on the card by witness, and he had no knowledge of how it came there. He had made certain entries on the card when the patient called at the clinic at various times in October, 1908, and he swore that these entries were true when made, although he no longer had any personal recollection of the matters so entered. The defendant offered the card in evidence, and it was excluded upon, objection, the defendant excepting to the ruling of the trial court. The court rejected the evidence on the ground that there was not sufficient proof of identity between the insured and the patient, and on the further ground that the record card was not competent evidence, even if identity be assumed. A similar question arose as to the introduction of another record card, kept by a witness who was a nurse in the employment of the board of health, relating to the case of a patient known as “ Margaret Douler.” This card was likewise excluded when offered in evidence. The defendant claims that the rejection of these cards was reversible error. Copies of these cards do not appear among the exhibits in the record now before ns. Mor is there any proof as to what the contents were. As they were excluded on the plaintiff’s objection, which did not raise any question of materiality of the evidence, we must assume that the contents were material to the issue. (Patten v. U. L. & A. Ins. Assn., 133 N. Y. 450.) As to the identity of the patient at the clinic with the person insured in the policy, similarity of name made a prima facie case .of identity, according to long-established rules of law. (Hatcher v. Rocheleau, 18 N. Y. 86, 92; Layton v. Kraft, 111 App. Div. 842, 846; Hoffman v. Metropolitam, Life Ins. Co., 135 id. 739.) While these record cards were not competent evidence of their contents simply as records, yet where it was shown that the. entries thereon were made by the witness at the time of the happenings described as taking place in his presence, and were honestly made by him, such entries may be admissible where the witness has ceased to have any personal recollection of the facts in question. (Halsey v. Sinsebaugh, 15 N. Y. 488 ; Russell v. Hudson River R. R. Co., 17 id. 139 ; Guy v. Mead, 22 id. 462; Howard v. McDonough, 77 id. 592; Clark v. Nat. Shoe & Leather Bank, 164 id. 498.) The evidence so excluded was of importance in determining the issues involved in this action. For it appears that the insured died of pulmonary tuberculosis in December, 1909, while the application for the policy was made in late July, 1909, and the policy issued at about the same time. There was other testimony offered and received to show that the insured had pulmonary tuberculosis for some time prior to the application for the policy, but there was a conflict of testimony on this point, and the jury evidently rejected this part of defendant’s proofs. There was evidence likewise that the decedent had stated that she had been to the clinic in August, 1908, and had been informed by the doctors that she had consumption. The verdict of the jury indicates that this evidence was likewise disregarded. The exclusion of the record cards deprived this evidence of some corroboration, and was, therefore, not harmless. The judgment and order should be reversed and a new trial granted, costs to abide the event. Jenks, P. J., and Burr, J., concurred; Woodward and Rich, JJ., dissented. Judgment and order reversed and new trial granted, costs to abide the event.