148 Misc. 64 | N.Y. Sup. Ct. | 1933
On September 18, 1928, Grace Mischler, then twenty-six years of age, insured her life in the defendant company, naming her husband, the plaintiff, as beneficiary. She was married to the plaintiff in the fall of 1926, and in the spring of 1927 met with an automobile accident in which she sustained a chest injury.' From this accident her husband, the claimant under the policy, testified that his wife was weak and run down and very nervous. About a year later, in May, 1928, she was ill and was treated by a physician who found her suffering from a condition of anemia and what he believed to be bronchitis; she was coughing at the time. Finding nothing in her lung, he nevertheless sent her to an X-ray specialist. Her own physician found what he described as a thick
“ 7a. Have you had any accident or injury or undergone any surgical operation? ” “ No.”
“ 8. Have you consulted a physician for or suffered from any ailment or disease of: (b) the heart, blood vessels or lungs? ” “ No.”
“ Have you had rheumatism, gout or syphilis? ” “ No.”
“ 10. Have you consulted a physician for any ailment or disease not included in your above answers? ” “ No.”
“ What physician or physicians, if any, not named above have you consulted or been examined or treated by within the past 5 years? ” “ None.”
The application was attached to and made part of the contract of insurance.
In the light of the facts disclosed at the trial, which are not disputed, the falsity of the applicant’s answers cannot possibly be doubted. Nor can the materiality of these misrepresentations be questioned. In Travelers Ins. Co. v. Pomerantz (246 N. Y. 63), the defendant, applying for a policy of fife and disability insurance, answered question 12 in the application as follows: “ I am not deformed; I have no bodily or mental disease, nor have I received medical or surgical attention within the past five years except as herein stated.” The proof disclosed that within the past five years he had received medical attention no less than twelve times
Defendant’s motion for direction of the verdict is granted. The judgment should provide for repayment of the premiums collected to the plaintiff.