119 N.Y.S. 801 | N.Y. App. Div. | 1909
This action was brought upon a policy of life insurance issued by the defendant on July, 12, 1906, by which the defendant undertook to pay to the plaintiff the sum of $2,500 upon the death of Walter Fletcher. The defense was a false statement made by the insured to the medical examiner of the company, upon which the defendant • issued the policy in suit. It seems that in the year before the deceased had applied for insurance in the Life Association of America, and on his medical examination upon that application he vyas asked how long since he had consulted a physician, and in reply
It was then ■ proved that in 1905 the insured had been ill at Olean, H. Y; that he had been attended by a physician at that place and had been treated for such illness; that his illness was acute gastritis with nausea, vomiting, chills, fever with weakness of heart, and that he had been treated for such illness continuously from September 30, 1905. It also appeared that in the year 1905 he had made an application for a policy of insurance to the.Mutual Reserve Life Insurance Company and had been examined by the
At the end of the trial both parties applied for the direction of a verdict and neither party requested the court to submit any question to the jury. The court subsequently directed a verdict for the plaintiff, stating that it was of the opinion that the description of the words inserted in this medical examination was intended as a reiteration of the truth of the answers given on the prior examination (62 Mise. Bep. 546), and I think they fairly bear that construction. The court also held that the words “ there is no change from last examination of August, 1905, except the Ins. taken in the Metropolitan Life Co.,” were to be construed as meaning that in the opinion of the witness his physical condition was not changed, and the fact that he had a temporary illness of a few weeks duration after the last examination was not a breach of that covenant. I do not think it necessary to decide this question, because I think the evidence conclusively establishes the fact that the insured had made an application to the Mutual Beserve Life Insurance Company on July 21, 1905, which had been rejected at least on July 28, 1905. Upon the examination of the 1st of August, 1905, upon which this policy was based, he was asked: “ Have you ever made an application for Life Insurance, upon which a policy was not issued, or if issued, on a different plan than the one applied for ? ” To which he answered, no. He had made an application to the Mutual Beserve Fund Association prior to July 21, 1905, had been examined on July twenty-first and a policy was not issued upon that application. The trial judge said in his opinion that the testimony on this branch of the case is very unsatisfactory and leaves one under the conviction that this medical examiner, at most, told the deceased that he was postponed for a further examination. Assuming that he was so told on the twenty-first of July, the deceased knew at the time he was examined that he had made an application to the Mutual Beserve Life Insurance Company for life insurance and that a policy had not been issued. His answer, therefore, to that question was clearly
It follows that the judgment appealed from is reversed and a new trial ordered, with costs to the appellant to abide the event.
Patterson, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to' appellant to abide event.