63 N.Y. 404 | NY | 1875
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *406 It is provided by the policy upon which this action is brought, that the application for insurance and the statements therein which are referred to in the policy, shall constitute a part of the contract. Such was evidently the plain intention of the parties; and according to well settled rules the policy and the application must be construed as if they constituted a single instrument or contract. (Burritt v. Sar. Co. Mut. Ins. Co., 5 Hill, 188; Angell on Ins., § 141.)
The legal effect of making the application a part of the policy is, that what otherwise would be mere representations are converted into warranties. (Angell on Insurance, §§ 307, 141;Murdoch v. Chenango County Mutual Ins. Co.,
The policy was issued in consideration of representations made in the application, and it provides that if any statements upon the faith of which the company issues the policy shall be proved in any respect untrue, that the policy shall be void.
Among other things the deceased stated, in answer to one of the interrogatories put to him in the application, that he had never been afflicted since childhood with any disease of the liver or any serious disease. This was one of the warranties included in the policy, and any violation of it was a forfeiture of the same. There was evidence upon the trial to show *408 that on several occasions the deceased had been seriously ill with the disease already mentioned, which if true would constitute a breach of the warranty made in reference to that subject.
Such being the state of the case the judge erred in refusing to charge the jury, as requested by the defendant's counsel, that the declarations and statements in the application were warranties, and if any of them were fraudulent or untrue the plaintiff could not recover.
It is insisted that although the answers were in the nature of warranties there was no error, because the warranty was a restricted and limited one, and there was no sufficient evidence to show a breach of it. The argument is, that as there was no evidence of a diseased liver it was not material whether the answers were warranties. It cannot be denied that there was testimony that the deceased was ill in July, 1870, with congestion of the liver, and again in July, 1871, four months before he applied for insurance. And although it is claimed that the disease alleged was not of a serious character, and so slight as not to render the policy void on that account, it is quite sufficient that there was some evidence to submit to the jury upon that subject; and it is not unreasonable to suppose that the refusal of the judge to charge as requested may have had some effect upon the verdict of the jury. He had stated the distinction between a warranty and a mere representation, and, as in the law of insurance a representation is not a part of the contract but is collateral to it, and as the difference between them is very material (see Burritt v. Saratoga County MutualIns. Co.,
The rule is also well established that the warranties must be substantially true or the policy will be avoided; and that it is of no consequence whether the representations are material *409 or not, as the parties have made them material by making them a part of the contract. Even if the representations were made innocently and under a belief that they were true, it can have no bearing. (See Foot v. Ætna Ins. Co., supra, and authorities there cited.)
Having in view the rules referred to, it necessarily follows that the judge erred in that portion of his charge which was excepted to, and in such of the refusals to charge as requested, to which exceptions were taken, as are in conflict with the rules last stated. The judgment must be reversed and a new trial granted, with costs to abide the event.
All concur.
Judgment reversed.