20 Misc. 231 | City of New York Municipal Court | 1897
The application which forms a part of the contract provides, among other things: “ If any statement or answer in the application for this policy, which application is hereby referred to and . made a part hereof, is in any respect untPue * * * .then this policy is void.”
And also that no person, except the president or secretary, is authorized to make, alter or discharge contracts or waive forfeitures.
It is further declared: “Application is hereby made to the John Bancock Mutual Life Insurance Company for insurance, and as a basis for such insurance statements are made which, including those made to the medical examiner, shall form a part of the contract for insurance, and if in any respect untrue, the policy issued on this application shall be void.”
Among the questions asked of the wife of the plaintiff, whose life was being insured, was Eo. 13: “ Q. Bave you ever been in any hospital or public or private institution for treatment of any kind? If so, give particulars. A. Eo.”
This was admittedly false and untrue. She was intelligent and able to read and write, and it is conceded that before the paper was signed by her she was warned by her husband to see and know what she was signing, and that the agent had already written down
Then with this knowledge she signed it. She told the agent that she had only been in the hospital for examination and not for treatment of any kind. If this was so, the agent was justified in writing the answer “ no,” but she knew better than any one else that this answer was false and untrue, for she had been confined to the hospital from the 19th to the 25th day of December, 1.892, for a period of six days, during which she had' an operation performed on her, and was treated for an ulceration of the neck of the uterus from which she had beefa suffering for a long time and which finally caused her. death.
There does not appear, from the evidence any improper act on the part of the agent, and it is clear from the evidence of the physicians that she was not only examined, but treated for a serious woman’s trouble and submitted, to an operation during her stay at the hospital.
This was, then, a breach of the warranty and thus rendered the policy void, and whether the statement was knowingly or ignoreantly false, the result of the forfeiture follows, in accordance with the terms of the contract, and operates as a complete .answer to the plaintiff’s claim. Preuster v. Chosen Friends, 135 N. Y. 417-420.
Having warranted her answer, whether she knew dr not was immaterial, because by reason of such a warranty she was bound to know whether it Was true or not, and having taken the risk of that, even though she had no actual knowledge, and- no proof was offered to- show it was willful falsehood, it was -sufficient for* the defendant to show, as a matter of fact, that the answer was false. Elliott v. Mutual Benefit Ass’n of America, 76 Hun, 378-381; Sullivan v. Ins. Co., 36 N. Y. St. Repr. 38.
The parties have made them material by inserting them and it does not matter whether the agent of- the company who procured the insurance for -the company knew the true state of facts; it is immaterial.
The mere fact that the statements are warranties and untrue vitiates the policy. Foot v. Aetna Ins. Co., 61 N. Y. 571-576.
For these reasons the judgment must be reversed and a new trial granted,, with costs to the appellant to abide the event.
Van Wyck, Ch. J., concurs.
Judgment reversed and new trial granted, with costs to appellant to abide event.
