156 N.Y.S. 892 | N.Y. App. Div. | 1916
The defendant, an Indiana insurance company, wrote and delivered a policy of insurance to one Samuel Simpson of Kingston. The contract provided that upon the death of the said Samuel Simpson, by accidental means, it would pay to the beneficiary, the plaintiff in this action, the sum of $1,000. Simpson was killed in an accident at Waterbury, Conn., on or about the 16th day of December, 1913, while the said policy was in full force and effect, if such policy ever had a valid inception, and the plaintiff made the proper proofs of death and demanded payment of the claim, which was refused. This action was brought to recover the amount of the policy and has resulted in a verdict in favor of the plaintiff. The defendant appeals, claiming that the policy never had any legal existence, due to alleged false statements, constituting warranties.
The propositions relied upon on this appeal are (1) that the statement, “I am employed by James Powers, masoner,” was false and untrue; (2) that the statement, “My occupations are Eepairman to telegraph. My duties in such occupations are only Eepairman to telegraph,” was false and untrue; (3) that the statement, “In case of death my beneficiary shall be Clara Moore; relationship, cousin,” was false statement of relationship of beneficiary to insured.
It is not disputed that these several statements, contained in the application, and which were indorsed upon and made a part of the policy, were untrue, and it will be assumed that the parties having apparently contracted that these statements should constitute warranties the defendant would be entitled to a verdict, unless there was something in the law to overcome the ordinary rule in such cases. The policy being a contract of life insurance (St. John v. American Mut. Life Ins. Co., 13 N. Y. 31, 38), and being delivered, by a life insurance corporation doing business in this State, undoubtedly comes within the provisions of section 58 of the Insurance Law (Consol. Laws, chap. 28; Laws of 1909, chap. 33), which not only provides that the policy shall contain the entire contract, but that “ all statements purporting to be made by the insured shall in the absence of fraud be deemed representations and not warranties,” and that “ any waiver of the provisions of this sec
If we are right in the proposition that the answers to the questions asked by the defendant’s agent were not to be regarded as warranties — and the language of the section cited would seem to justify this view (Becker v. Colonial Life Ins. Co., 153 App. Div. 382, 384) — then, in the absence of fraud, these representations, to vitiate the contract, must be made knowing them to be false; they must have been material and relied upon as an inducement to the making of the contract. (Becker v. Colonial Life Ins. Co., supra, and authorities there cited.) The statute provides clearly that any attempt to waive these provisions is void, so that the mere fact that the contract calls these statements warranties does not operate to make them so in law. They are representations, and a representation is a verbal or written statement made by the insured to the underwriter before the subscription of the policy as to the existence of some fact or state of facts tending to induce the underwriter more readily to assume the risk by diminishing the estimate he would otherwise have formed of
This being the rule, it is entirely certain that the alleged misstatement of the insured’s then present employer’s name did not have any bearing upon the contract; it was not in any sense material. It may be that as to the rating of the insured’s risk the answer in reference to the character of the employment was material, but it was not relied upon as an inducement to the making of the contract, nor is there any evidence from which it can be said that the statement made by the insured was knowingly false. As to the alleged false state
But there is another ground on which this judgment may rest. The evidence clearly warranted the jury in finding that all of the statements made by the insured were true as made, but that the defendant’s agent, who filled out the application blank and directed the insured where to sign the same, had failed to record the answers as made; and the authorities are not in conflict that under such circumstances the defendant is estopped to urge the defense. (Rowley v. Empire Insurance Co., 36 N. Y. 550; New Jersey Mutual Life Ins. Co. v. Baker, 94 U. S. 610, 614, and authorities there cited; Mead v. Saratoga & Washington Fire Ins. Co., 81 App. Div. 282; affd., 179 N. Y. 537.)
The judgment and order appealed from should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs. Cochrane, J., not sitting.