Opinion
November, 1904.
Amos Van Etten, for the appellant.
John J. Linson and E. Metzger, for the respondent.
The action is upon a policy of insurance issued by the defendant upon the life of Frank T. Wynn, payable to the plaintiff, his wife.
The policy was issued the 23d day of January, 1902, and the insured died eight days thereafter.
The appellant insists there was no valid issuing of the policy for the reason the first premium had not been paid, and because the policy had been surrendered before the death of the insured.
We think there was a binding credit given for the payment of the premium and that there was no legal surrender of the policy.
The verdict of the jury cannot be allowed to stand, however, for the evidence is overwhelming that material statements made by the insured in his application were false. By the terms of the policy the application is made a part of it, and by the application the insured declared that the answers given by him were true, and agreed that in case any statement was untrue or fraudulent the policy should become null and void. The answers, therefore, to material questions became warranties, and unless they were substantially true there can be no recovery on the policy. ( Cushman v. U.S. Life Ins. Co., 63 N.Y. 404; Dwight v. Germania Life Ins. Co., 103 id. 341.)
To the inquiry as to his age at his nearest birthday the insured answered thirty-four years. The defendant produced the record of his birth contained in the baptismal register of the Roman Catholic church of the parish in which his father and mother lived at the time. This record shows that he was thirty-seven years of age on his last birthday before the application. In addition to this, the insured himself had signed a statement when he applied to be admitted to a sanitarium for treatment for the liquor habit, which showed he was at least thirty-six years of age at the time he stated he was only thirty-four. The plaintiff herself, although stating that the insured was only thirty-four, yet upon comparing his age with her own and her birthday in May with his in November, made his age thirty-six years. A sister of the insured, sworn in behalf of the plaintiff, made his age thirty-four years, but upon a previous trial, comparing his age with her own, had testified that he was older.
The policy contained no provision that in case of under statement of age it should be valid at a greater premium. The evidence was so preponderating that the insured was older than he stated at the time of his application that the jury were not justified in finding that his statement as to his age was true.
In addition the insured was asked a series of questions as to whether he had had specific diseases or symptoms of them, amongst which was the inquiry as to whether he had had any affection of the nervous system, or had ever been seriously ill, to all of which he answered "No." Then followed an inquiry asking him to name his family physician, or usual medical attendant, and to also name any other medical attendants whom he may have had within ten years, or for any serious complaint or protracted illness. To this inquiry he stated that he had had no regular physician, but named a Dr. Little, giving his residence.
The uncontradicted evidence shows that in February, 1896, the insured applied to the Baker-Rose Sanitarium for treatment for alcoholism, and was there treated by Doctors Trigg and Marshall until a complication of diseases became manifest and treatment was discontinued and he left the institution. During this time his nervous and physical condition was such that he remained in bed most of the time. In his application for treatment in that institution he stated that he had drank for fourteen years and that he was taking twenty-five drinks daily.
The purport of these questions was to obtain a history of his ailments and the medical services which he had required. It is true that he only partially answered the question with respect to his physicians, and that, therefore, it cannot be said that he made a false statement, because he made no statement at all; yet he did state that he had never been seriously ill or had any affection of the nervous system.
It can hardly be said that a man who is so addicted to the liquor habit that he takes twenty-five drinks daily, and enters an institution for alcoholism and treatment is discontinued because his physical and nervous condition is such that the treatment cannot be continued and he is so prostrated that he remains in bed most of the time, has never been seriously ill. The appellant was entitled to know these facts and the concealment of them was fraudulent. While there is no direct inquiry calling for a disclosure as to whether or not the applicant has been treated for alcoholism, it was a material fact which the insured concealed. We think the facts show that he was in fact seriously ill during the treatment, and that his statement that he had never been seriously ill was false.
For these reasons, as well as those pointed out with respect to his age, we think the motion for a new trial should have been granted.
The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred; SMITH, J., in result.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.