Opinion
February 8, 1943.
George Savage for plaintiff.
Lewis C. Ryan for defendant.
On December 29, 1939, Edward M. Tierney, the insured, made a written application to the defendant for the life-insurance policy in question. The policy was delivered to him on January 2, 1940. It is a term policy for five years. The insured died November 19, 1940. The above-mentioned action was brought by Mabel F. Tierney, the beneficiary, to recover the amount of the policy.
The defense is that misrepresentations were made by the insured in his application for the policy. At the close of the evidence a motion was made by the defendant for a nonsuit and decision thereon was reserved. The jury found a verdict for the defendant. This is a motion to set it aside and for a new trial upon exceptions taken upon the trial and to the charge of the court.
This case was submitted to the jury under the law laid down by the Court of Appeals in Geer v. Union Mutual Life Ins. Co. ( 273 N.Y. 261, decided March 9, 1937). The jury was not permitted to pass upon the materiality of the alleged misrepresentations as to prior medical treatment or whether or not the defendant with full knowledge of the facts would have been led to refuse to issue the policy.
This case held that where an applicant for insurance has notice that before the insurance company will act upon the application, it demands that specified information, such as the prior medical treatment rendered to the applicant, shall be furnished for the purpose of enabling it to determine whether the risk should be accepted, any untrue representation, however innocent, which, either by affirmation of an untruth or suppression of the truth, substantially thwarts the purpose for which the information is demanded and induces action which the insurance company might otherwise not have taken, is material as matter of law. — [REP.
After examining section 149 Ins. of the Insurance Law (L. 1939, ch. 882), which took effect January 1, 1940, I am convinced that this case was submitted to the jury upon a wrong theory. In my opinion, it should have been submitted in accordance with the provisions of subdivision 2 of section 149 Ins. of the Insurance Law; and the questions of the materiality of the representations and whether or not the insurance company would reasonably be expected to refuse to write the policy if it had full knowledge of the undisclosed facts should have been left to the jury to decide. I do not believe I would be justified in holding, as a matter of law, that the alleged misrepresentations were material; nor do I believe that the defendant's proof, viewed in the light of the plaintiff's evidence, was such as to warrant my holding, as a matter of law, that full knowledge of the facts would have led the insurer to refuse to write the contract.
Providing that: "No misrepresentation shall avoid any contract of insurance or defeat recovery thereunder unless such misrepresentation was material. No misrepresentation shall be deemed material unless knowledge by the insurer of the facts misrepresented would have led to a refusal by the insurer to make such contract." — [REP.
The motion for a nonsuit should be denied; the verdict of the jury set aside, and a new trial granted.