Opinion of the Court, per ALLEN, J.

not for loading and unloading at any intermediate station. There is no claim that the detention at Dunkirk was occasioned by the willful or negligent conduct of the defendant or its servants, or that the cattle were not carried to their destination as soon as they could have been, with reasonable diligence. The loss resulted from the delay, and in consequence of "heat and suffocation and being crowded upon the cars." The loss was within the terms of the contract and to be sustained and borne by the plaintiff, unless caused by the willful act or neglect of the defendant.

The cattle were in charge and under the care of the plaintiff's servant and agent. No duty was devolved upon the defendant other than to transport them in a proper car, safely and with reasonable dispatch. The carrier did not undertake to look after the cattle or care for them, to water or feed them, or to guard against any of the necessary consequences resulting from delays or detention on the route. Whatever was required to be done to prevent injuries and loss arising from such causes was to be done by the owner or his servant in charge of the cattle. The agent of the plaintiff testified that he could have arranged planks and taken the cattle from the cars, and thus prevented the injury, and did not because it was not his business. Had he undertaken to remove the cattle from the cars and been prevented by the defendant or its servants and agents, and loss had ensued, the defendant would have been liable. The recovery was had upon the ground that it was the duty of the defendant's agents, upon request of the plaintiff's agent, to have unloaded the cattle at Dunkirk, if it could have been done by the exercise of reasonable care and diligence, and the jury were instructed to this effect. This was placing the responsibility of the care of the cattle upon the carrier instead of the owner. If, as the case shows, the cattle were in charge of and under the care of the servant and agent of the owner, the defendant was not chargeable for neglect of duty in not unloading them or taking any other care of them necessary for the prevention of injury or loss. The duty of the defendant had respect to SICKELS-VOL. IV. 27

Opinion of the Court, per ALLEN, J.

the transportation of the cattle, and not the care of them while in transitu.

Again, this case falls within the general principle that he who seeks to recover damages which have resulted from the negligence of another, must himself be free from negligence contributing to the injury. The plaintiff's agent in charge of the cattle could have prevented all loss by himself removing the cattle, and his omission to do so, under the circumstances, was a negligent omission of duty, directly contributing to the injury. If the agent of the owner had not been with the cattle to take care of them, the duty would have been upon the defendant to do what was necessary to guard against loss and damage during the detention; that is, to use proper diligence and care in looking after the cattle. (Clark v. Rochester and Sy. R. R. Co., supra; Hamilton v. McPherson, 28 N. Y., 72.)

The direct cause of the injury was the want of proper care of the cattle at Dunkirk, and is upon the evidence attributable to the plaintiff's agent. If there was any obstacle interposed by the defendant to the unloading of the cattle, it should have been shown.

The judgment must be reversed and a new trial granted. CHURCH, Ch. J., FOLGER and RAPALLO, JJ., concur. GROVER, J., concurs in the result, upon the ground that the exception to the refusal of the judge to charge as requested, as to the duty of the person in charge of the stock to unload them, was well taken.

PECKHAM, J., dissents.
Judgment reversed.

Statement of case.

CHARLES F. SMITH, Appellant, v. THE ETNA LIFE INSURANCE
COMPANY, Respondent.

It is the duty of the General Term of the Supreme Court to set aside a
verdict which is against the clear weight of evidence. Where a judgment
has been reversed and new trial granted by that court upon the facts,
this court occupies the same position, and the facts are open for review.
A concealment of material facts, called for by questions in an application
for a policy of life insurance, is as fatal to the contract as a denial.
Defendant issued a policy upon an application where in the applicant stated
that the insured was in good health, and usually enjoyed good health;
that no circumstance which might make the risk more than usually haz
ardous was concealed or withheld. To a question, whether the insured
had had certain diseases, among them disease of the heart, palpitation,
spitting of blood, etc., the answer was see surgeon's report;" it was
also stated that the insured had no physician. The examining physician,
in answer to a question whether the insured had cough, occasional or
habitual, or expectoration, or occasional or uniform difficulty in breath-
ing, answered "no cough; walking fast up stairs or up hill produces
difficulty in breathing." In fact, the insured had raised blood from two
to two and a half years prior to and down to his death; a physician had
been consulted and prescribed therefor. He had failed in health prior to
the application; he died three months after the issuing of the policy, of
pleura pneumonia. The referee rendered judgment against defendant.
Held, there was a fraudulent concealment and misrepresentation of mate-
rial facts, and an order of the General Term setting aside the judgment
was proper.

(Argued April 3, 1872; decided April 16, 1872.)

APPEAL from order of the General Term of the Supreme Court in the fourth judicial department, setting aside a judg ment in favor of plaintiff, entered upon the report of a referee. (Reported below, 5 Lans., 545.)

Action upon a policy of insurance issued by defendant for $2,000, upon the life of Jonathan C. Smith, father of plaintiff. The material facts are set forth in the opinion.

If the order of

Lyman Tremain for the appellant. Supreme Court was correct it should have been only on payment of costs; this should be corrected here. (Graham's Practice, [2d ed.] 635; 12 Mod., 370; 1 Burr., 12, 393; 3 Cow.,

49 211 120 243

Statement of case.

342; 1 Graham & Waterman on New Trials, 603, and cases cited.) In case the Supreme Court or other subordinate court overrules a settled rule of practice, this affords good ground for reversal of its order by an appellate tribunal. (Wills v. Lane, 15 Wend., 99, 100, 106; Forsha v. Drost, 4 Bosw., 664.) The statement that the insured was in good health was true. (Peacock v. Ins. Co., 20 N. Y., 293.) The finding of a referee upon conflicting evidence cannot be set aside any more than the verdict of a jury, and is equally conclusive. (Davis v. Allen, 3 N. Y., 168; Bearss v. Copley, 10 id., 93; 15 Wend., 87.) If there was a conflict of evidence the court will not grant a new trial on the ground that the verdict is against evidence, even though they deem the conclusion reached by the jury erroneous. (33 Barb., 127; 36 id., 23; 6 Cow., 682; 7 Barb., 271; 7 How. Pr., 64; 27 Barb., 528; 5 Sandf., 180; 27 Barb., 337; 3 E. D. Smith, 98; 5 Barb., 337; 7 How., 251; 29 Barb., 218; 33 id., 347; 24 How., 58; 29 Barb., 226; 27 id., 540; 29 id., 491; 33 id., 347; 2 Hill, 528.) Where a question of fraud has been decided by a jury, after hearing evidence on both sides, there is no rule of law allowing the court to interfere with or disturb their verdict. (1 G. & W. on New T., 353; 3 J. R., 180; 10 id., 101; 37 Barb., 520.) The finding of a judge or jury cannot be reversed when the evidence is conflicting. The facts must show passion, prejudice or inattention to their duty. (25 How., 427; 29 id., 155; 3 J. R., 170; 3 Hill, 251; 2 id., 578; 3 Bosw., 520.)

Rollin Tracy for the respondent. If the applicant consciously withholds any material fact, the contract is vitiated in its origin, and he cannot recover on a contract which is the offspring of his own fraudulent concealment or misrepresentation. (See Phillips on insurance, § 535, etc., et seq., Sturner v. The Great Western Ins. Co., 40 How. Pr. R., 423.) The employment of and consultation with Dr. Hoxie made him the family physician of insured. (Monk v. A. M. Life Ins. Co., 6 Rob., 455.) The judgment being reversed upon

Opinion of the Court, per PECKHAM, J.

questions of fact, this court has the power to examine the facts, and the whole case is properly presented to this court for review. (See Code, § 272, sub., 7; Peterson v. Rawson, 34 N. Y., 370; Beebe v. Mead, 33 id., 587.)

PECKHAM, J. The action was upon a policy of insurance applied for by the plaintiff on the 19th day of January, 1867, upon the life of his father, J. C. Smith; policy issued February 11th, 1867, and the insured died May 11th, same year.

*

In the application for insurance, plaintiff stated that his father "is now in good health, of sound body and mind, and usually enjoys good health, * * and that I have not concealed, withheld or misrepresented any material circumstance in relation to the past or present state of his health or condition which may render an assurance of his life more than usually hazardous, or with which the directors of said company ought to be made acquainted." The questions and answers were signed by the applicant with his name and with that of the insured, and it was agreed that if the answers were in any respect false or fraudulent the policy would be void. Among the questions were these: "Has the party ever had any of the following diseases (naming some twenty in number, among which are asthma, disease of the heart, palpitation and spitting of blood)?" The answer is, "See surgeon's report." Another question: "Name and residence of the family physician of the party, or of one whom the party has usually employed or consulted?" Answer: "Had no physician." Another: "Has the party, or has he had, an habitual cough?" Answer: "No."

The examining physician, in answer to the question "whether the party has ever suffered from disease of any kind," said "no;" also, in answer "whether cough, occa sional or habitual, or expectoration, or occasional or uniform difficulty in breathing, or palpitation," the physician said: "No cough; walking fast up stairs or up hill produces diffi culty in breathing; no palpitation.'

The referee found generally for the plaintiff, and that