Opinion
August 31, 1959.
Action by beneficiary to recover face amount of a life policy. The Supreme Court, Trial Term, Charles Marks, J., held that failure on the part of insured to answer truthfully as to consultations he had with physicians during a five-year period prior to issuance of policy in question constituted a material misrepresentation precluding recovery of the face amount of the policy.
Complaint dismissed upon the merits.
William B. Z. Fishkin, New York City, for plaintiff.
Fayette S. Dunn, of Budd, Quencer Commette, New York City, for defendant.
This action was tried by the court without a jury. Findings of fact and conclusions of law were waived by both parties.
The action was brought to recover the sum of $15,000, face amount of a life insurance policy issued on the life of one Alex Winkler, on February 11, 1955. The plaintiff who is the beneficiary under this policy was the partner of the insured, Winkler, in the fur business. The defense is that of fraud and misrepresentation by the insured in the application. The insured died on October 31, 1955. The policy of insurance contains the usual provision, to wit: "This policy and the application, copy of which is attached and made a part hereof, constitute the entire contract between the parties." The application signed by the insured, and in evidence, gives the information, in answer to the question asked for particulars as to consultations with a doctor during the past ten years, that the insured consulted a Dr. Greenfield (deceased) for "occ. cold" and in answer to the question as to whether the insured within the past five years "consulted for any purpose (including examinations), doctors not named above," answered "No," and in answer to the question as to whether the insured "had an electrocardiogram, X-ray examination, or any other laboratory tests or examinations" during the same five-year period, the answer was "No." And in answer to the question, "Are there any omissions in the record of medical attention contained in questions 2 through 5 above" (which includes the above questions), the insured answered, "No."
The evidence of the case discloses the following: The family physician, Dr. David Zehner called by the defendant testified that the insured had consulted him professionally at his office in the year 1951 on twentyfive different occasions; and in the year 1952 on eleven occasions; and in the year 1953 on seven occasions. Dr. Zehner also testified that he took electrocardiograms of the insured on February 19, 1951, and April 11, 1953. In addition to this testimony, defendant offered the testimony of Dr. Jezer, a heart specialist who stated that the insured had consulted him professionally at his office on two occasions in 1951, and on both occasions he did electrocardiograms on the insured.
The court permitted the introduction of testimony on the part of both Dr. Zehner and Dr. Jezer to the extent that they attended the insured professionally and the dates and frequency of the professional calls by the insured to the offices of the physicians. Authorities in this state are conclusive upon the holding that such information is not privileged (see Cirrincioni v. Metropolitan Life Ins. Co., 223 App.Div. 461, 228 N.Y.S. 354; Klein v. Prudential Life Ins. Co. of America, 221 N.Y. 449, 453, 117 N.E. 942, 943; Curtis, N. Y. Law of Evidence, sec. 926).
At the opening of this trial, an attorney representing Sara Winkler, widow of the insured, stated that she was administratrix and personal representative of the deceased, Alex Winkler, and made application to the court for leave to intervene solely for the purpose of objecting to any testimony of a privileged nature as to which doctors had treated the deceased professionally and might be asked to refute, and for no other purpose. The court granted the application to so intervene and the said Sara Winkler, as personal representative, refused to waive the privilege provided for in section 352 of the Civil Practice Act.
In view of the conclusion arrived at by this court, the question as to whether or not said permission to intervene was properly given becomes academic. The question of fact to be passed upon by this court is whether the failure on the part of the insured to answer truthfully as to consultations with physicians during the five-year period prior to the issuance of the policy of insurance constitutes such a material misrepresentation as to warrant a finding on the merits dismissing the complaint. In Geer v. Union Mutual Life Insurance Co., 273 N.Y. 261, 7 N.E.2d 125, in which a doctor was named by the insured as having been consulted by him during the ten years preceding the policy, the evidence showed that another physician had been consulted and that the applicant had been hospitalized during that period. Question in that case as to whether the failure to cite these facts constituted material misrepresentation, the Court of Appeals stated, 273 N.Y. at page 262, 7 N.E.2d at page 128: "Any decision that a misrepresentation is not material must, of course, be based upon a holding, as question either of law or of fact, that the departure from the truth was not a factor which deprived a person of freedom of action and did not induce a choice which otherwise might not have been made. In no case which has been called to our attention has a court of this or other jurisdiction enforced a policy where information demanded by an insurance company `in order to decide whether it would issue a policy' and which might reasonably be considered a factor in arriving at a choice has been withheld. The question in such case is not whether the company might have issued the policy even if the information had been furnished; the question in each case is whether the company has been induced to accept an application which it might otherwise have refused. `Any misrepresentation which defeats or seriously interferes with the exercise of such a right cannot truly be said to be an immaterial one.' Travelers' Ins. Co. v. Pomerantz, supra, 246 N.Y. 63, at page 68, 158 N.E. 21, at page 23. There we held that proof of the withholding of information concerning medical consultations, though called for by a question in an application blank, requires in the absence of denial or explanation a finding of material misrepresentation." (Emphasis the court's.)
In the instant case, Dr. Robert Schlesinger, called as a witness for the defendant, testified that he was the medical doctor of the defendant insurance company and that he passed upon the application to the defendant for policy of insurance and in answer to the question as to whether or not his company would have issued the policy, in suit, without further inquiry, had the insured answered the questions truthfully, answered, "definitely not."
In Anderson v. Aetna Life Insurance Company, 265 N.Y. 376, at page 382, 193 N.E. 181, at page 182, in writing the unanimous opinion of the court, Chief Judge Pound said: "As a representation it was material to the risk, even though it was made in good faith. The false representations were made a part of the policy. Good faith requires fair dealing from both parties. In Stanulevich v. Saint Lawrence Life Association, 228 N.Y. 586, 127 N.E. 315, we held that the application being a part of the policy the insurer and assured are bound by its terms as a part of the contract of insurance. In Keck v. Metropolitan Life Insurance Company, 238 App.Div. 538, 264 N.Y.S. 892, affirmed 264 N.Y. 422, 191 N.E. 495, the insured in his application for a policy made a statement that he had not been attended by a physician during the past five years. He had been attended by a physician on three occasions in that period. It was held that the misrepresentation was material to the risk as matter of law and that the policy was void."
This court holds that the failure on the part of the insured to answer truthfully as to consultations with physicians during the five-year period, prior to the issuance of the policy of insurance in question, constitutes a material misrepresentation and accordingly finds that the complaint should be dismissed.
Judgment may therefore be entered dismissing the complaint upon the merits together with appropriate costs to be taxed.