162 F.2d 977 | 2d Cir. | 1947
The plaintiff appeals from a judgment, entered upon the verdict of a jury in an action to recover upon a policy of life insurance, taken out upon the life of one of its officers, named Tuffiash. The defense was that Tuffiash in his application for the policy had stated that he had not seen a physician for five years and that he did not suffer from any heart ailment, when in fact both statements were false; and that the insurer would not have issued the policy if it had known the truth. The evidence was that the application, which was made in March, 1944, contained the following questions, to which Tuffiash made the following answers:
“17. Are you in good health? A. Yes.
“18. Have you ever suffered from any ailment or disease of * * * (b) the heart, blood vessels or lungs ? A. No.”
“20. What physician or physicians, or clinic, if any, not named above have you consulted or been treated by, within the last five years, and for what illness or ailment? A. None.”
In February, 1944, Tuffiash had consulted an orthopedic surgeon, named Kruger, who after examining him, sent him to a heart specialist, named Bernstein, because Kruger thought “that lie should have a complete,
The Court left three questions to the jury:
“(1) Did 1he insured, Charles Tuffiash, consult Dr. Bernstein during the year prior to applying for the policy in suit?
“(2) If you find an affirmative answer to auestion No. 1, would the defendant have issued the policy in suit had it known of such examination, without receiving a report from Dr. Bernstein?
“(3) If you find the answer to question 1 in the affirmative, would the defendant have issued the policy in suit had it received a report from Dr. Bernstein on the history given to him by the insured, his examinations and findings?”
The jury answered the first question, “Yes.”; the second and third questions, “No.” Thereupon the judge directed a judgment for the defendant. The only question is whether the three answers of the jury were adequate under § 149 of the Insurance Law of the State of New York, Consol.Laws, c. 28.
Until 1909 all answers made by an applicant for life insurance to questions put by the insured were in New York regarded as warranties and invalidated the policy, if they were false.
The Insurance Law of 1939 was a general recasting of the earlier law of 1909; and the material formerly in § 58 was much expanded and distributed among §§ 142, 149 and 150. The dissenting opinion in Glickman v. New York Life Ins. Co., supra, 291 N.Y. 53, 50 N.E.2d 538, 148 A.L.R. 454,
Coming next to the text. Tt is true that subdivision four declares that, when an applicant answers falsely that he has not consulted a physician, his answer is to be taken as though he had said that- he had not had the ailment which the physician discovered. If the “facts misrepresented” were the test of “materiality,” there might be some plausibility in the plaintiff’s argument that the insurer would have to prove that the applicant had in fact had the ailment, and the applicant’s suppression of the physician’s discovery would be irrelevant, although the discovery itself might of course be in such form that it would be competent evidence on the issue. However, subdivision four does not unconditionally make the existence of die ailment the “fact misrepresented”; it makes it such only “for the purpose of determining its materiality; that is, the materiality of the misrepresentation. It is subdivision two which defines “materiality,” and therefore this part of subdivision four means no more than that, in using the test of materiality set up by subdivision two, one must take the “facts misrepresented” as the existence of the ailment. The test of materiality in subdivision two is, howexer, not the existence of the “facts misrepresented,” but “knowledge by the insurer of the facts misrepresented”; if that “knowledge * * * would have led to a refusal by the insurer,” the “misrepresentation” (the denial of the consultation which pro hae vice becomes a denial of the existence of the ailment), is a good defense. Therefore, the question is whether a communication of the physician’s discovery would have given the insurer “knowledge” of the ailment.
That such information falls within the meaning of “knowledge,” as the section uses the word, does not seem to us open to debate. The Legislature was dealing with practical affairs, not epistemology, and any “knowledge” of the existence of a past ail
Judgment affirmed.
Chap. 882 of the Laws of 1939.
Rohrbach v. Germania Fire Insurance Co., 62 N.Y. 47, 20 Am.Rep. 451.
Eastern Dist. Piece Dye Works v. Travelers’ Insurance Co., 234 N.Y. 441, 450, 138 N.E. 401, 403, 26 A.L.R. 1505.
Travelers’ Insurance Co. v. Pomerantz, 246 N.Y. 63, 158 N.E. 21; Minsker v. John Hancock Mutual Life Ins. Co., 254 N.Y. 333, 173 N.E. 4, 81 A.L.R. 829; Jenkins v. John Hancock Mutual Life Ins. Co., 257 N.Y. 239, 178 N.E. 9; Anderson v. Ætna Life Ins. Co., 265 N.Y. 376, 193 N.E. 181; Geer v. Union Mutual Life Ins. Co., 273 N.Y. 261, 7 N.E.2d 125; Glickman v. New York Life Ins. Co., 291 N.Y. 45, 50 N.E.2d 538, 148 A.L.R. 454.
291 N.Y. 45, 52, 50 N.E.2d 538, 148 A.L.R. 454.
269 App.Div. 376, 56 N.Y.S.2d 475.