67 F. 460 | 3rd Cir. | 1895
This was an action by F. Alpert and Lottie Alpert, his wife, in the right of the wife, against the Fidelity & Casualty Company of New York, on a policy of insurance against accidental personal injuries, issued to Thomas P. Laverty, and dated January 5,1893, whereby the company agreed to pay a certain weekly indemnity sum during his disability resulting from any accident, and the sum of $3,000 in case of his death, if caused by accident, and happening within 90 days thereafter. In the event of the death of the assured from accidental injury, the principal sum of $3,000 was made
“(1) The court erred in the general charge in this: that after using the following language, ‘What was Mr. Laverty’s age when the policy of insurance sued on was obtained? Was he under 05, or was he over 70, years old? This is a question for you to determine from all the evidence,’-—the court further stated: ‘It is also a question for you to determine, under the evidence, whether the misrepresentation alleged to have been made to the insurance company as to Mr. Laverty’s age was a material misrepresentation? Did it, or not, fairly act to induce the defendant company to issue the policy? If you find from the evidence that the alleged representation with respect to Mr. Laverty’s age was in fact made, and was a material representation, and that it was not true, your verdict should ho for the defendant. If you do not so find, then this particular defense would fail.’ (2) The court erred in refusing to affirm, without qualification or modification, the defendant’s fourth point, which was as follows: ‘If the jury believe that the age of the assured, Thomas P. Laverty, was not truthfully stated to the defendant company at the time of the application for the policy, then the contract between the defendant and the assured was void, and the verdict should be for the defendant. Answer. This point is affirmed, if the jury find that the alleged statement as to age was material.’ ”
In the course of his charge to the jury, the learned judge had said:
“In a contract of insurance, good faith requires that the assured shall truthfully represent to the insurer every fact with respect to which ho speaks, material to the risk, which lies exclusively within the knowledge of the assured, and constitutes an inducement to the insurer to enter into the contract”
Taken in connection with other portions of the charge, the jury were thus fully informed of the issues of fact on which they were to pass, and also of the duty incumbent on the assured in making his application for insurance. The record does not set out the application,
“There is a great distinction between that which amounts to what is called a warranty, and that which is merely a representation inducing a party to enter into a contract. Thus, if a person effecting a policy of insurance says, T warrant such and such things here stated,’ and that is a part of the contract, then whether they are material or not is quite unimportant. The party must adhere to his warranty, whether material or immaterial. But if the party makes no warranty at all, but simply makes a certain statement, if that statement has been made bona fide, unless it is material, it does not .signify whether it is false or not false. Indeed, whether made bona fide or not, if it is not material, the untruth is quite unimportant.”
Tbe question of law bad been previously submitted to all tbe judges, and Mr. Baron Parke, in replying for them, and treating tbe proviso in tbe policy of insurance wbicb was tbe cause of action, said:
“It prohibits every false statement whatever, whether in matters actually material or immaterial, and leaves no room for dispute whether the particular matter to which it related was material or not (which, in the case of a dispute, a jury would have to decide), leaving the company to determine entirely for itself what matters it deems material, and what not.”
It bas been beld that, if there was nothing expressed in tbe terms of a policy wbicb required a particular statement to be made, never - theless, if the omitted fact was a material one, tbe keeping'it back.
“It is well settled tliat the operation of a.ny concealment on the policy <le> pends on its materiality .to the risk, and this court has decided that this materiality is a subject for the consideration of a jury”; reaffirming the rule laid down in Livingstone v. Insurance Co., Id. 274 (decided at the same term).
In Insurance Co. v. Lawrence, 10 Pet. 516, it was decided that the Mai court had rightly rejected instructions to the jury which proceeded upon the ground that, if there was any misrepresentation of the interest of the assured, that alone, whether material or not to the risk, would avoid the policy, and that it was still more objectionable to ask the court to declare to the jury, as matter of law, that the nondisclosure of the true nature and extent of the title and interest of the assured in the premises was a concealment of circumstances materially affecting the risk, which canceled the policy, thus taking from the jury the proper examination of the fact whether it was material to the risk or not. In Lindenau v. Desborough, 8 Barn. & C. 586, it was said to be the duty of a party effecting an insurance on life or property to communicate to the underwriter all material facts within his knowledge touching the subject-matter of the insurance, and it is a question for the jury whether any particular fact was or was not material.
An examination of the authorities cited by counsel for the appellant will show that they are, for the most part, cases where the materiality of the statements of the assured was settled by the parties them sel ves, and constituted the conditions on which the contract was made, thus leaving only the truth or the untruth of the statements to be ascertained by a jury. In Anderson v. Fitzgerald, supra, which was relied on to sustain the exception, it was distinctly held that the untrue answers of the assured, ipso facto, avoided the policy, because the assured had warranted his answers to be true, and by so doing had excluded the question of their materiality. In a case of warranty, the question of materiality does not arise, but in the case of representation it always does; and in the latter case, if this materiality depends upon facts and circumstances, it is a question for the jury, as is also the materiality of a concealment. May, Ins. 193. On a review of the whole record, and a full consideration of the arguments of counsel, we are satisfied that there was no error in the charge of the circuit court, or in the refusal to grant the instructions prayed for, and its judgment is therefore affirmed.