The opinion of the court was delivered by
This is аn appeal from a judgment entered upon a verdict for the plaintiff below at the Bergen Circuit.
The plaintiff is the mother and beneficiary of Anna E. Kerpchak, whose life the. defеndant company insured for $1,000 on April 3d, 1919.
The policy says that it was issued in consideration of the rеpresentations in the attached application made a part thereof, and further prоvides, as required by our Insurance law — Pamph. L. 1907, p. 133, § 1 (4) — that "all statements made by the insured shall, in the absence of fraud, he deemed representations and not warrantees.” It also provides that it shall be unсontestable after one year, except for certain causes not now in questiоn.
The insured died of pulmonary tuberculosis December 5th,
We are of the opinion that the denial of that motion was erroneous.
The legal rale is that where, аs here, a policy provides, as required by our Insurance law, that “all statements made by thе insured shall, in the absence of fraud, be deemed representations and not warrantees,” the policy will be avoided for a misrepresentation in the application, madе a' part thereof, if the misrepresentation be material and fraudulent; that is to say, if it be thе statement of something as a fact, which is untrue, and which the insured stated, knowing it to be untrue, and with an intеnt to deceive, or which he stated positively as true, without knowing it to be true, and which had a tendency to mislead; such fact in either case being material to the risk. Prahm v. Prudential Insurance Co. (New Jersey Court of Errors and Appeals), post p. 206.
' Every fact which is untruly stated or wrongfully supprеssed must be regarded as material, if the knowledge or ignorance of it would naturally and reasonably influence the judgment of the underwriter in making the contract at all, or in estimating the degree or character of the risk, or in fixing the rate of premium.
A false statement in the apрlication made a part of the contract that the applicant had not consulted or been attended or treated by a physician, is material to the risk, and, if made knowingly аnd willfully, will avoid the policy. Metropolitan Life Insurance Co. v. McTague, 49 N. J L. 587.
In the present case the application shows that the insured was asked, “Give name and address of physician last consulted?” She answered, “Never had a doctor.”
The application was made on March 30th, 1919, and the poliсy was dated April 3d, 1919. The uncontradicted evidence shows that on March 10th, 1919, and again on Marсh 24th, 1919, the insured went from Garfield, her home, to Dr. Lippe in Newark, near by, for treatment, and he told her that she had weak lungs and catarrh and prescribed for her. .Tt shows that between such consultаtions she was visited by the district nurse, who advised her to go to the Glen Gardner sanitarium, known to the insured tо be a state institution for tuberculosis patients. The question put in the application was nоt ambiguous, and called for the statement of a fact, not the expression of an opinion. The false answer was made understandingly, knowingly and willfully. The insured was a native of this country, intelligent and understood English. The question was put in English, and her doctor was an English-speaking physician.
Since such matters of fact were established by unimpeached witnesses and without contradiction, a vеrdict should have been directed for the defendant because of such fraudulent misreprеsentations. Fish v. Metropolitan Life Insurance Co., 73 N. J. L. 619; Guarraia v. Metropolitan Life Insurance Co., 90 Id. 682; Brunjes v. Metropolitan Life Insurance Co., 91 Id. 296.
It is contended, however, that such false and fraudulent statement does not bar recovery by the plaintiff beneficiary because it was made by an infant. Not so. Where, as hеre, a policy of insurance is taken out by a minor above the age of fifteen years, on her own life and for her benefit or the benefit of her mother, and she dies before reaching majority, a false and fraudulent representation made by the insured in the applicаtion upon which the policy is based, respecting a matter of fact material to thе risk, constitutes a defence to an action upon the policy by the beneficiary named therein. See Prahm v. Prudential Insurance Co., supra, where the reason for the rule is stated.
For affirmance — Minturn, Black, Van Buskirk, JJ. 3.
For reversal — The Chancellor, Chief Justice, Swayze, Tren chard, Parker, Bergen, Katzenbach, White, HepPENHEIMER, WILLIAMS, GARDNER, AcKERSON, JJ. 12.