#### James H. Monk, plaintiff and appellant, *vs.*The Union Mutual Life Insurance Company, defendant and respondent.

1. Where it appeared, in an action upon a life policy, that upon the few occasions on which the assured was indisposed during a period of three years immediately prior to making the application for the policy, a particular physician, and he alone, was called in to attend him; *Meld*that this constituted such physician the “ usual medical attendant” of the applicant, within the ordinary and popular acceptation of the term, and for the purpose of construing a representation on that subject contained in the application.

2. Whether the answer given by the applicant for a policy upon his life, to a question as to the name arid residence of his “ usual medical attendant,” in which he states that “ he has none,” be true or not, is a question of fact, to be determined in the same manner, and upon the same principles, as any other fact. If the answer be shown to be untrue, no recovery can be had, upon the policy.

3. It is a principle of evidence that a fact continuous in its nature, when shown to have once existed, is presumed to exist, within reasonable limits, until it is affirmatively shown to have ceased.

4. The fact of the usual employment of a physician is continuous in its'nature, and the presumption that' it continued for the space of two months subsequent to the last employment is not an extension beyond reasonable limits.

5. Where a party, on cross-examination of a witness, for the purpose of showing that the only knowledge which the witness has of a fact he has sworn to on the direct examination is derived from information given by third persons, not parties to the action, asks the witness how he knows the fact thus testified to by him, in answer to which the witness testifies to statements made to him by such third parties, he does not thereby make those declarations evidence against himself; nor is he bound.thereby.

6. Where evidence offered by the plaintiff; though incompetent, is received with-' out objection, *it seems*the court will not, on the mere ground of its incompetency, set aside a verdict for the plaintiff; even though such verdict was found entirely on that evidence.

7. This doctrine is based on the principle that *a party*cannot take advantage of *his own negligeixe*in permitting improper or incompetent evidence to be adduced, to reverse a judgment rendered against him thereon.

8. The doctrine has always been applied in favor of sustaining a judgment; but not to reverse a judgment on the ground that such improper or incompetent testimony established or tended to establish a fact fatal to the judgment.

9. There is no rule which requires a judge to submit to the jury a question of fact on which there is no conflict of testimony, except such as arises out of incompetent or improper testimony.

(Before Barbour, Garvin and Jones, JJ.)

Heard October, 1868;

decided December 31, 1868.

*456This is an action on a policy of life insurance issued.by the defendant on the 13th of September, 1866, on the application in writing of one Effingham H. Warner, wherein and whereby, in-consideration of the representation made to the defendant, in the application, and of the sum of. $1000, the defendant insured the life of the said Warner for the sole and separate use of Hascall A. Hogel, the son-in-law of said Warner, in the sum of $10,000, to be paid to said Hogel, his executors, administrators or assigns.

The representation referred to is in the shape of answers made by said Warner to various questions propounded to him. One of the questions propounded was : “ Name and residence of the party’s usual medical attendant.” The answer to this was, “Have none,” The evidence adduced by the defendant to show the falsity of this answer was substantially this: *Dr.*Burdick testifies that he first knew Warner in 1861; that Warner died February 16, 1867; that during a part of this time he, Burdick, was Warner’s family physician; that Warner was in the habit of consulting with him; that in 1863 he first prescribed for Mr. Warner, during which year he made four office prescriptions to Warner’s family; some of them to Warner himself; in 1864 he. did not prescribe for Warner himself, but did for members of his family; in 1865 he did not prescribe for Warner; thinks he was not sick; on May 13th, 1866, he was called to see Warner at his house, who had some trouble with his bowels, in the shape of a colic, attended with constipation; on the 7th of August, 1866, he was again called to see Warner, who was then suffering from flatulent colic and constipation of the bowels. On this occasion he attended Warner from the 7th to the 12th of August, 1866.

The representation in question was made September 12th, 1866, just one month after Mr. Warner’s August illness. Afterwards Dr. Burdick again prescribed at his office, for Warner, in November, 1866.

There was no evidence that any physician other than Dr. - Burdick was ever called in to attend or prescribe for *457Warner. In fact, there was no evidence that during that period Warner was indisposed, except On the occasions when Dr. Burdick attended him.

The plaintiff, to sustain the truth of the answer given to the question, relies on the evidence of Hascal A. Hogel, which is as-follows: “I am a son-in-law of Mr. Warner; I was in the habit of seeing him often from August, 1866; after his illness in August, 1866, his general appearance as to health was as usual before that time; ordinarily, he appeared to be a man in good health.

*Q.*Was any thing said by Mr. Warner to Dr. Shipley about having colic ?

*A.*After Dr. Shipley got through the questions in the paper he had, Mr. Warner rose up, and put his hands on his stomach, and said he was troubled with colicky pains, or pains in his guts, and that when he pooped wind he felt, relieved. The doctor asked him some few questions in regard to it, and said that was nothing, and passed out; that was on the examination for the Guardian Life Insurance ' Company.

*Q.*Do you know whether, in September, Mr. Warner had a regular medical attendant ?

*A.*He had not.

*Q.*Did you ever hear him speak of changing Dr. Burdick?

*A.*I did; after his August sickness he said he would not have Dr. Burdick again; that he was going to change from homceopathie to allopathic treatment, which he did when he was sick in November.”

*Cross-examined.*“I am the husband of Sarah E. Hogel.

It was for her benefit that Mr. Warner insured in the Guardian Life Insurance Company.

*Q.*How do you know that Mr. Warner changed his physician after his August sickness ?

*A.*I heard him say so, and advised him not to change;

I do not know that he had occasion to call in a physician between his August sickness and his November sickness.” ■

Which evidence was, as claimed, supported by the fact *458that on November 11, 1866, Dr. Stirling was called in to attend Warner, in a sickness which proved to be fatal.

It however appeared that Dr. Stirling discontinued his visits on February 4, 1867, when Dr. Burdick was again called in, and continued in attendance until the death of Warner, which occurred on February 16, 1867.

Upon this testimony the plaintiff’s counsel requested the judge to submit to the jury, as a question' of fact, whether, at the time Mr. Warner answered the question, he had any usual medical attendant The learned judge refused to submit that question to the jury; to which refusal the plaintiff’s counsel excepted.

The learned judge directed a verdict for the defendant; to which direction the plaintiff’s counsel excepted. '

From the judgment entered on this verdict the present appeal was taken by the plaintiff.

*D. T. Walden,*for the appellant.

*Mr. Peckham,*for the respondent

By the Court, Jones, J.

The appellant’s counsel Concedes that if the answer given by Warner to the question propounded to him respecting his usual medical attendant be untrue, then the plaintiff”cannot recover. But he insists—

1st. That there is not sufficient evidence to support a verdict against the truth of the answer.

2d. That the evidence is of such a character that a verdict of the jury either way would be sustained; and therefore the question of fact as to the truth or falsity of the answer should have been submitted to the jury for its determination.

If he is correct in either of these propositions the judgment must be reversed; otherwise affirmed. Whether the answer be true or not is a question of fact to be determined in the same manner, and upon the same principles, as any other question of fact. The evidence in the case, keeping *459out of view for the present the testimony of Hogel, clearly establishes that at the time the answer was given, Dr. Bur-dick was the usual medical attendant of Warner.

The evidence shows that on the few occasions on which Warner was indisposed, during the period extending from some time in 1868 down to Hovember 10, 1866, Dr. Bur-dick, and he alone, was called in. This certainly constitutes him the usual medical attendant, within the ordinary and popular acceptation of the term.

. It is suggested that if, on the 13th of August, 1866, Warner had discharged Burdick, then Burdick would not, at the time of the answer to the query, have been his usual medical attendant. Conceding this to be so, and also conceding that the answer given would, under such circumstances, have satisfied the query, (on which no opinion is intimated,) still it is necessary to establish such discharge; for it is a principle of evidence, founded upon the ordinary experience óf mankind, that a fact continuous in its nature, when shown to have once existed, is presumed to exist, within reasonable limits, until it is affirmatively shown to have ceased. (1 *Stark. on Ev.*54. *McMahon*v. Sarrison, 6 *N. Y.Rep.*443.) The fact of the usual employment of a physician is continuous in its nature, and the presumption that it continued for the space of two months subsequent to the last employment, does not extend beyond reasonable limits.

Aside from the testimony of Hogel, there is not the slightest evidence that Burdick was discharged, or that Warner changed his medical attendant prior to Hovember 11, 1866. The answer to the query is no evidence in support of either of these facts, for that would be to make the answer, the truth of which is in controversy, evidence of its own verity; besides, Warner in the first illness with which he was attacked subsequent to the last attendance of Burdick, in August, 1866, first called in Burdick, and this was after his answer to the query; thus showing that he had not at that time definitely made up his mind to discharge Burdick and employ any other physician, This *460evidence, then, standing by itself, would imperatively call for a verdict against the truth of the- answer. If, then, there is no competent evidence in support of its truth, the direction to the jury was correct.

The evidence relied on is that of Hogel, but I think it wrholIy insufficient to call for a submission of the case to the jury. It is true, on his direct examination, he swears positively to the bald fact that Warner had no regular medical attendant in September, 1866; but on his cross-examination it appears that his only knowledge on the subject was his hearing Warner say that he had changed his physician after his August sickness. The effect of the direct and cross-examination is simply to prove that Warner made a certain statement, which statement is in this case incompetent evidence to prove the truth of the fact so stated.

It, however, is suggested that the defendant, having, on Ms cross-examination, called out evidence as to Warner's declaration, has made it evidence against itself, and is bound thereby. I do not so understand the rules of evidence. It would be strange if when a witness on his direct examination testifies to a fact, the opposite party should be allowed to prove by cross-examination of said witness that he is an incompetent witness to the fact only under the penalty of making the very answers of the witness which prove his incompetency, competent evidence to prove the fact testified to by the incompetent witness on his direct examination, although they would otherwise be incompetent.

The only remaining portion of Hogel’s testimony bearing on the subject is his answer to the question, “Did you ever hear him (Warner) speak of changing Dr. Burdick ?” This question is inadmissible, and the evidence given in answer to it incompetent; yet as it was not objected to, it is probable that the court would not, on the mere ground of its incompetency, have set aside a verdict for the plaintiff, even' though that verdict was found entirely on this evidence." (2 *Grah. on New Trials,*655 *to*664.)

This doctrine is based on the principle that *a party*can*461not take advantage of *Ms own negligence*in permitting improper or incompetent evidence to be adduced to reverse a judgment rendered against him, thereon. The doctrine has always been applied in favor of sustaining a judgment; but in no case that I am aware of has it been applied to reverse a judgment on the ground that such improper or incompetent testimony established or tended to establish a fact fatal to the judgment. ■ I know of no rule which requires a judge to submit to the jury a question of fact on which there is no conflict of testimony, except such as arises out of incompetent or improper testimony.

What would be the result of reversing this judgment and ordering a new trial? Nothing wonld be gained by the plaintiff'. On such new trial the testimony of Hogel would be objected to and excluded, and then, upon the principles indicated in this opinion, the judge, on the other testimony abové referred to, would be obliged again to direct a verdict for the defendant.

The fact that Dr. Stirling was called in on November 11, 1866, has not been overlooked. It perhaps is scarcely necessary to observe that that fact, by itself, does not tend to prove that Dr. Burdick was not, up to that time, the usual medical attendant of Warner.

I see no conflict of testimony requiring the submission to the jury of the question of fact which he was required to submit.

Judgment affirmed, with costs.