212 A.D. 126 | N.Y. App. Div. | 1925
The plaintiff (beneficiary) has recovered a judgment against the defendant (insurer) upon a policy of life insurance. By appropriate references thereto the application was made a part of the policy of insurance and a copy of it was made a physical part of said policy and delivered to the insured: The defendant sought to
escape liability thereon on the ground that certain statements made by the insured were false, to her knowledge, and, therefore, constituted warranties and that the defendant relied upon those representations in issuing the policy and as soon as it learned of their falsity had rescinded or attempted to rescind the policy.
Upon the trial the defendant gave evidence which would have justified a finding that the policy was void for a breach of the warranties therein or that the policy had been rescinded because of the false representations therein. The plaintiff was then permitted to give evidence tending tó show that the defendant was not in fact deceived at all; that the agent who acted for the defendant in soliciting the insurance and the doctor who examined the insured for defendant were both aware of the true facts and knew they were not stated in said application.
Section 58 of the Insurance Law provides that “ Every policy of insurance issued or delivered within the State on or after the first day of January, nineteen hundred and seven, by any life insurance corporation doing business within the State shall contain the entire contract between the parties and nothing shall be incorporated therein by reference to any constitution, by-laws, rules, application or other writings unless the same are indorsed upon or attached to the policy when issued; and all statements purporting to be made by the insured shall in the absence of fraud be deemed representations and not warranties. Any waiver of the provisions of this section shall be void.” Prior to the adoption of this section
The effect of the statute is to apply to contracts of insurance the same rule as to estoppel that is applicable to ordinary contracts, which is stated by the Court of Appeals as follows: “It is undoubtedly the general rule that a written contract signed by a party thereto and containing the terms and conditions of an agreement, is conclusive upon him, and that he will not be permitted to show, in avoidance thereof, that other stipulations were made at the time of, or before, its execution, which would vary, alter, or contradict the provisions of the written instrument.” (Miller v. Phoenix Mutual Life Ins. Co., 107 N. Y. 292, 296.) As the testimony introduced violated this rule it was incompetent.
At the conclusion of the case the defendant moved that a verdict be directed in favor of the defendant upon the ground that a material false representation had been made and that certain warranties contained in the application were false, it having been stated that the insured had never been treated in a hospital and it now appearing that that statement was false. This motion was based on a claim that the false statement was a warranty and also a representation. The statement in the application was: “ I have never received or applied for treatment at or in any hospital, dispensary, sanitarium, cure or other institution.”
The proofs of death furnished by the plaintiff showed that the insured was admitted to the Harlem Hospital on February 9, 1920, and discharged on March 6,1920, and the diagnosis was “ carcinoma of caecum.”
Upon a former trial the plaintiff testified that the insured was in the Harlem Hospital about eight months before the policy was
The proofs of death show that the immediate cause of death was “ cachexia,” and the primary cause “ lympho sarcoma of pelvis.”
The undisputed evidence, therefore, shows that the statement in the application that the insured had never received or applied for treatment at a hospital was false. That it was material, I think there can be no doubt. Neither can I see any escape from the conclusion that it was fraudulent.
The judgment should be reversed upon the law, with costs, and the complaint dismissed, with costs.
Present — Kelly, P. J., Jay cox, Kelby, Young and Kapper, JJ.
Judgment of the City Court of Yonkers reversed upon the law, with costs, and complaint unanimously dismissed, with costs.