60 F. 727 | 2d Cir. | 1894
The assignments of error impugn the ruling of the trial judge in instructing the jury to find a verdict for the defendant. If the trial judge correctly instructed the jury to render a verdict for the defendant, upon the ground that there was a warranty by the assured of the truth of the answers made in his application for insurance, and upon the un-contradicted evidence one of the answers was untrue when made, it is unnecessary to consider whether the truth of other representations was, upon the evidence, a question of fact for the jury. The policy was issued October 2, 1891, upon the application of Michael Simio ⅝ made a few days earlier, and insured his life. It recites that the insurance was made “in consideration of the answers, statements, and agreements contained.in the application,
“I, Michael Sinnott, residing at Waterbury, county of New Haven, and state of Gonneeticut, do hereby mate application to the United Life Insurance Association for membership and a policy of insurance upon my life, and, as a consideration therefor, I warrant the statements and answers as written in said application to be full, complete, and true.”
It contained, among others, the following inquiries and answers:
Q. “Has the applicant ever had any illness, local disease, injury, mental or nervous disease or infirmity? If yes, state nature, date, .duration, and severity of attack.” A. “About one year ago lost appetite for short time, but has had no trouble since.” Q. “How long since you consulted, or were attended, by a physician?” A. “About a year ago.” Q. “State name and address of such physician.” A. “J. F. Hayes, M. D.” Q. “For what disease or ailment?” A. “Indigestion.” Q. “Give name and address of each physician who has prescribed for or attended you within past five years, and for what disease or ailments, and date.” A. “J. F. Hayes, M. D., Waterbury, Oonn.”
It concludes as follows:
“It is hereby agreed that the answers and statements in this application, whether written by the applicant or not, are warranted to be full, complete, and true, and that this agreement, together with this application, are hereby made part of any policy that may be issued thereon, and that if any answers or statements made are not full, complete, and true, or if any condition or agreement shall not be fulfilled as required by such policy, then the policy issued hereon shall be null and void, and all money paid thereon shall be forfeited to said association.”
It appeared upon the trial that Hayes was the medical examiner for the defendant who examined Sinnott at the time the insurance was applied for. He had attended Sinnott professionally within the year preceding the application. It also appeared by undisputed testimony upon the trial that in November, 1889, the assured was sufficiently ill to desire the services of a physician, and Dr. Lopez was called, and attended him professionally. He became dissatisfied with Dr. Lopez. Dr. Lopez was discharged, and on the same day another physician, Dr. Axtelle, was called, who, on that day, and on several other occasions during that and the succeeding month, visited and attended him professionally. Testimony was given tending to show that, at the time of these visits, he had heart disease, enlargement of the liver, and dropsy; but there was also testimony tending to show that he never had any serious illness. He died December 31, 1891.
It is a settled rule in the law of life insurance that answers to questions propounded by the insurers in an application for insurance, unless they are clearly shown by the form of the contract to have been intended by both parties to be warranties, to be strictly and literally complied with, are to be construed as representations, as to which substantial truth in everything material to the risk is all that is required of the applicant. By the present contract it was explicitly provided that all the answers were warranted to be full, complete, and true. Its language, unlike that of the contract which was considered in Moulor v. Insurance Co., 111 U. S. 335, 4 Sup. Ct. 466, is plain, unequiv
The judgment is affirmed.