30 N.Y.S. 660 | N.Y. Sup. Ct. | 1894
Upon this motion the defendant raises but one question, although that is raised in several different ways. The point made by it is that certain statements made by the insured, which will be more particularly referred to hereafter, were warranties, and that, as some of them were not true, there should have been a verdict for the defendant instead of for the plaintiff. It is very doubtful whether the question sought to be presented was raised upon the trial. At the close of the testimony, the defendant moved for the direction of a verdict upon the ground that Dr. Henckell had attended the deceased during the month of February, 1892, as a physician. That on the 4th of March, 1892, the deceased made false answers to certain questions which were stated. That those statements being false by him were material to the company and to their information at the time, and, being falsely repre
Also, upon the ground that, “ subsequent to the issuing of the policy and entering into this contract with the company, the deceased was attended by a physician throughout the year; since the making of the contract he had been attended by Dr. Henckell through the summer. That the application for the reinstatement amounts to a representation that the conditions are the same as when first issued.” Also, that no cause -of action is made out upon the pi-oofs.
It will be noticed that this does not raise the question that the statements referred to were warranties, but asks the court to hold that there shall be a nonsuit for the reason that the statements were false and were material, and for that reason did not bind the company. It was not suggested by the counsel in that motion that the statements made were or could be called warranties. As a matter of fact, that particular part of the policy which is now relied upon as making them warranties was not referred to, and the attention of the court was not . called to it. It is said by the counsel upon this motion that it was not necessary to call the attention of the court to that part of the policy which raises the material question in this case, because -it is claimed to constitute a warranty. This claim, if seriously made, cannot for an instant be sustained. It is the duty of the counsel, not only to present to the court all the points upon which they rely, but to call the attention of the court fairly and openly to the facts which are relied upon as establishing their propositions. Any other course would be a failure of that good faith which counsel, by virtue of their office, are expected to exercise towards the court in which they practice. It is not suggested here that there was any bad faith on the part of counsel for the defendant in the trial of this action. It is quite probable tliat the clause in question was not brought to his notice. It certainly was not in that part of the policy where anybody would have been likely to look for it, and it would not be brought to his notice, or to the notice of any one else, unless attention was partic
For these reasons the point which is sought to be made here cannot now be raised in this way.
But if the defendant were in a position to raise the question, I am quite clear that he is entirely wrong in his construction of this contract, and that the statements which are sought tó be incorporated into this policy were not incorporated into it by the contract between the parties, and, therefore, they are not warranties, but only representations.
The form of the contract is quite remarkable. The policy upon its face does not incorporate the application into it, nor does it say that the application is a part of the policy. It. contains, however, the following clause: That the Commercial Alliance Life Insurance Company, in consideration of, etc., does hereby promise to pay a certain sum to Caroline L. Boehm, or such other person as the insured may from time to-time designate, with the written consent of the company “ upon the provisions, conditions and agreements on the back hereof, which are made a part of this contract.” Turning-now to the provisions, conditions and agreements referred to, we find under the head of “ Incontestibility ” this provision: “Any other breach of warranty or untrue or incomplete-statement made in the application for this policy, will render-
There is no doubt about the rule that no statement made to an insurance company as the basis of a contract of insurance can be regarded as a warranty, unless the paper in which it is made is by necessary inference made a part of the contract.
It is also thoroughly settled that all the provisions of a policy of insurance, which are sought to be relied upon to produce a forfeiture, are to be construed strictly against the company. This rule is so thoroughly settled that no citation of authority is necessary to establish it. It is founded upon a wise policy, because the insurance companies make their own contracts; they insert in them just what provisions and conditions they see fit, and for that reason it is assumed that they have made their contracts as strongly in their own favor as it is possible for them to do. As is said by Judge Peck-ham: In these eases a strict construction must be insisted upon, and the contract resulting in a forfeiture cannot be extended beyond the strict and literal meaning of the words used. • In cases where the meaning is not entirely plain, and where it is capable of two constructions, one involving a forfeiture and the other being fair and reasonable and supporting the obligation of the policy against the insurer, that construction is preferred by the courts which does not involve the forfeiture, not only because it is not so harsh, but also because if the language is doubtful it is that employed by the insurer, and should be taken most strongly against him. Holly v. Metropolitan Life Ins. Co., 105 N. Y. 437, 441, 442. It is said by Judge Coweh in the case of Jefferson Ins. Co. v. Cotheal, 7 Wend. 72, that the doctrine of warranty in the law of insurance is one of great rigor, and for that reason it is never created by construction, and it must appear in express terms or must necessarily result from the nature of the contract.
The first thing to be noticed in this case is, that the application is not made a. part of the policy by anything contained in the policy itself, strictly speaking. It only can be said to be
These questions which are sought to be put into the application are required to be written by the medical examiner. "There are nearly forty different answers, some of which are necessarily not within the personal knowledge of the applicant, many of which, as every applicant for insurance knows, it is utterly impossible to answer with entire accuracy. Yet, if they are made a part of this policy, they are all warranties, •and every one of them becomes as material to the contract as ■the most important piece of information which is given to the •company, and the falsity of any one, even the least important, will enable the company to avoid the contract. Le Roy v. Market Fire Ins. Co., 39 N. Y. 90; Dwight v. Germania life Ins. Co., 103 id. 341. For this reason it has been held •that all statements made in the paper upon which the contract is sought by the insured are to be construed as representations rather than warranties in all cases where such construction is possible. Daniels v. Hudson River Fire Ins. Co., 12 Cush. 416. If the company desired these declarations to the medical examiner to be incorporated in the contract, it would have been very easy to say so. Where that is sought to be done in some policies they are especially referred to. It would have been easy in this case for the company to require Boehm to say that the entire contract was contained in the policy and in the application and in the declarations to the medical examiner, if it wanted them to be made a part of the policy. As it has not done so, it would violate one of the first canons of construction to enlarge the meaning of the word application for the purpose of introducing into the policy something which was not contained in the application, so that the company might insist upon a forfeiture.
There is no question, therefore, that the application which by this agreement is made a part of the contract is that paper, and that paper only, which is called an application and which is signed as such by the insured. It is not claimed that any
The questions, the false answers of which are relied upon as a defense, are as follows: “ Have you ever been seriously ill ? ” To which the answer is, “ No.” “ Name and residence of your usual medical attendant ? ” To which the answer was “ Has none.” “ Have you consulted any other physician; if so, when and for what?” To which the answer was “No.”
These statements were made on the 4th day of March, 1892. It appeared by the testimony, and was not disputed, that at four different times before the fourth of March the insured was at the office of Dr. Henckell, who examined him and prescribed for him. These four dates were on the fourth of February, thirteenth of February, twenty-fourth of February and the second of March. It does not appear accurately either with what disease Boehm, suffered, or what the doctor told him about it. It did appear, however, that during all the time previous to the application for insurance the man was at work driving his hack every day, and that at the times he visited the doctor before the application was made he drove to the doctor’s office upon his hack, or went there on foot. It did not appear anywhere in the testimony that he had, or ever had had, the attendance of any physician except Dr. Henckell, who prescribed for him on the four occasions mentioned above. No other physician had ever been called by him or consulted
It appeared in the case that in the month of November, 1892, this policy was permitted to lapse, and that an application was made on the 18th of November, 1892, for a reinstatement. _ In this application it was stated that Boehm was then in sound physical and mental condition; that he had not been sick, and the parties agreed that that application should form part of the contract of insurance, together with the original application. It may be conceded, for the purposes of this-motion, that from the time the policy wras reinstated the application for reinstatement became a part of. it, and that a statement that Boehm had not been sick from the time of the first making of the policy down to the eighteenth day of November was a warranty. That being so, the question then arose whether there was a breach of that warranty. The testimony showed that after the policy had been granted, and on the 15tli and 21st of August; 1892, Boehm was at the office of Dr. Henckell, who then prescribed for him. What was the nature of the indisposition from which he suffered, if any, does not appear. Dr. Henckell made this statement: “ I did
It is quite true that the case states that the defendant’s counsel objected to the submission to the jury of the question of the materiality of the representations which are mentioned in the charge of the court, but if that objection was intended for an exception to the charge of the court in any respect, it was entirely too broad. As we have seen, the materiality of the representations contained in the declarations to the medical examiner was properly submitted to the jury. This objection included the materiality of those representations, as well as the representations stated in the application for reinstatement. It is-well settled that a single. exception to several distinct propositions in the charge is of no avail if any of them is good. Haggart v. Morgan, 5 N. Y. 422. Within this rule the sweeping objection of counsel to submission to the
There was certainly no error in that portion of the charge of the court which submitted to the jury the question whether Boehm had been sick before the eighteenth of November. It was undisputed upon the testimony that up to that time and for some time afterwards he had been continually attending to his business, which was that of a liackman, and none of his neighbors knew or had any information that he was in any way out of health. The most that could be said was, that while he was engaged in his daily occupation he consulted Dr. Henckell either for a cold or for an indigestion, or for something of that kind. There is not one particle of evidence in this case that his illness, whatever it was, was anything more than an ordinary cold or a slight indigestion, which might have been the effect of a cold. Whether such an ailment of that kind was an illness within the meaning of this statement was clearly a question for the jury. It surely cannot be that a man who takes out a policy of life insurance must, at his peril, recollect accurately every occasion upon which he has suffered from a cold or a slight attack of indigestion, and it is equally clear that the question whether such an ailment can be. said to make a man sick is to be decided by the jury, and cannot be passed upon as a question of law by the court. Indeed, there is not one particle of evidence in this case which would warrant the defendant in interposing this defense.
But with regard to the submission to the jury of the question whether he had been sick before the eighteenth day of November, it is sufficient to say that no exception was taken and no question based upon that ruling is raised in this case.
The motion for a new trial must be denied, with costs.
Motion denied, with costs.