Opinion
Decided November 1, 1938.
ASSUMPSIT, on a policy of accident and health insurance issued to the plaintiff by the defendant. The plaintiff's written application for insurance, dated April 22, 1935, was made a part of the policy. The statements contained in the application, so far as material to the present controversy, are as follows:
"I hereby apply to the National Accident and Health Insurance Company of Philadelphia for a policy to be based upon my answer to the following questions:
"Q. 14. Have you been disabled by either accident or illness, or received medical or surgical attention during the last ten years? Answer. No.
"Q. 15. Do you understand and agree that the right to recover under any policy which may be issued upon the basis of this application shall be barred in the event that any of the foregoing statements, material either to the acceptance of the risk or to the hazard assumed by the Company, is false, or in the event that any of the foregoing statements is false and made with the intent to deceive? Answer. Yes."
In the year 1929 the plaintiff was a patient in a hospital for a period of thirty-six days under medical treatment for erysipelas. He seeks recovery in this action for disability resulting from an operation for appendicitis. He had no intention to deceive the defendant by his answer to the fourteenth question in his application, but assumed that this question referred to some incurable disease.
On the foregoing facts both parties moved for judgment. Transferred by James, J., without a ruling.
Warren, Wilson, McLaughlin Wiggin, for the plaintiff, furnished no brief.
Thorp Branch, for the defendant.
The plaintiff cannot recover if the falsity of his statement "affected either the acceptance of the risk or the hazard assumed by the insurer." P. L., c. 281, s. 15. In this jurisdiction a false statement as to medical history is held to affect the acceptance of the risk as a matter of law. Amoskeag Trust Co. v. Insurance Co., 88 N.H. 154, 163.
Judgment for the defendant.
BRANCH, J., did not sit.