52 N.Y.S. 978 | N.Y. App. Div. | 1898
Michael Egan, on the loth day of July, 1896, made an application for insurance to the defendant. This application, in so far as it is necessary for this decision, is as follows:
In making proofs of the death of Michael Egan, the physician who last attended him states that his apparent age was between forty-five and fifty years, and the defendant introduced evidence tending to show that the deceased was from three to four years older than he represented himself at the time of. making his application for this insurance. The rates of insurance in the defendant organization are based upon age, and the defendant, on proof of death, offered to pay the claim upon the basis of what had been paid in, making the amount $150 instead of $1,000. This the plaintiff refused, and this action was brought to determine the rights of the parties under the contract. The trial court, after- receiving the evidence, directed a verdict for the plaintiffs on the ground that the statements made by the insured did not constitute a warranty of the truthfulness of the representations. . The defendant excepted to this direction of the court, and in its own behalf asked that the court direct a judgment in favor of the defendant.
There is but one question in this case. If the statement as to the age of the insured was a warranty, then the judgment cannot be supported. If it was not, the direction of a verdict for the plaintiffs was justified, and the judgment should be affirmed. The language of the application, as well as of the policy of insurance,-is selected by the defendant, and is to be taken- most strongly against it. In the case of Fitch v. American Popular Life Ins. Co. (59 N. Y. 557), where the language of the contract was much stronger than in the case at bar, the court say, at page 566: “ Although the term
In the case at bar there was no claim that there was any fraud on the part of the insured. He stated his age to the best of his knowledge and belief, and there was no evidence that he had any knowledge or belief different from that which he stated in his application, though evidence was introduced on the trial tending to show that he was in fact, several years older than the date of his birth, as given in the application, would establish. He did not warrant liis statements to be true; he simply says that each and every one of them are true “to the best of my knowledge and belief,” and he further consents and agrees “ that any untrue or fraudulent statement made above,'or to the'medical examiner, or any concealment of facts by me in this application, or my suspension or expulsion from, or voluntarily severing my connection with this Legion, shall forfeit the lights of myself and my family, or dependents to all benefits and privileges therein.” This simply says that if any statement is untrue or fraudulent ; if he has intentionally stated that which to his knowledge and belief is not. true, it shall operate to vitiate tile-insurance; but there is no agreement that a statement, false in fact, but made to the best of his knowledge and belief, shall have the effect to defeat the objects for which he has for a series of years contributed his money in good faith ; and the courts of this State will not attempt to make a better contract for the insurers than they have themselves formulated and subscribed, by construing into a warranty the statements of the insured, made to the best of his knowledge and belief. “ Under this view of the contract it was necessary,” say the court in Fitch v. American Popular Life Ins. Co. (supra), “ in order to sustain the defense, to show not only that the statements were untrue, but that they were known by the insured so to be, and that they and the
The judgment of the trial court should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.
