74 N.Y. 6 | NY | 1878
The defense rests solely upon the alleged breach of warranty in the answer to the twenty-sixth interrogatory to the applicant for the policy, who was the person whose life was proposed to be insured. It was not claimed that there was a fraudulent suppression of any fact material to the risk, or of the truth in any matter, or a fraudulent misrepresentation, affecting the contract.
The interrogatory referred to was "name and residence *9 of the family physician of the party, or of one whom the party has usually employed or consulted?" Answer: "Refer to Dr. A.T. Mills, Corning, N.Y."
The language of the answer is equivocal. It neither declares Dr. Mills to have been, or to be the family physican of the applicant, or that he was the physician whom he had usually employed or consulted, or if he occupied either relation, which it was.
It is only upon the ground that the statement constitutes an express warranty, and was untrue in fact, that the defense can be sustained. The answer is not responsive in terms to the interrogatory, and does not profess to give the information asked. If it was not satisfactory to the defendant, a fuller and more explicit answer should have been required. A breach of warranty as upon the affirmance of an untruth cannot be alleged in respect of an answer which does not profess to state any fact. The words of the answer cannot be extended by implication in aid of a defense founded upon a technical breach of warranty beyond the fair import of its language, and the intent of the party as indicated by its terms. It is always in the power of the insurer to have an explicit and clear affirmation as to every fact material to the risk, and if the answers to the interrogatories are not full, and do not give the information called for, they cannot be treated as affirmations of facts not stated, although called for by the interrogatories. (Baker v. Home Life Ins.Co.,
The judgment must be affirmed.
All concur, except ANDREWS, J., absent.
Judgment affirmed.