This litigаtion is concerned with a policy of insurance issued by an Illinois corporation. It was dated April 20, 1930, and was received by the defendant Samuel J. Os-sen, a resident of New York, on May 5th or 6th, at whiсh time, or shortly thereafter, he paid the first premium. The policy purported to insure his life in the sum of $5,000 payable to his wife as beneficiary, and to provide for monthly payments to him in the evеnt of his total and permanent disability before the age of sixty. In September, 1931, he made proof of claim for disability benefits, alleging that his total and permanent disability began on'May 5, 1930, and was сaused by angina pectoris.due to coronary disease. The policy contained a clause making it incontestable after two years from its date. Before this term had expirеd the insurance company tendered to Ossen 'a return of all premiums paid by him and brought this suit to procure a cancellation of the policy on the ground, among others, that it never bеcame effective because of a condition precedent in the application forming part of the policy. This provided: “That the insurance hereby applied for, or any policy issued in -reliance upon this application, shall not take effect unless and until the first premium or instalment thereof is paid and the policy delivered to and acсepted by me while my health, habits and occupation are the same as described in this application.” Elsewhere in the application the applicant stated that he had not consulted a physician during the last ten years; that he believed himself to be in good health; and that he did not now have, nor had he ever had, any disease of heart or blood vessels. The application stated his occupation to be that of a salesman in a dairy store, and “merchant, butter, eggs.”
The defendants’ brief has devoted much argument to attempting to prove that when Ossen paid the first premium he was unaware of the fact that he was afflicted with a disease of the heart. If the attack of coronary thrombosis occurred on May 5, 1930, as he оriginally stated in his proof of claim for disability benefits, supported by the affidavits of two physicians certifying to the same date, he was not unaware of the disease when the premium was pаid. In his testimony, however, he explained that this date was inserted by mistake and that the attack actually occurred on May 12th. Apparently the district judge accepted the latter date. We shall assume, therefore, that Ossen was ignorant of the real condition of his health when the policy was delivered to him on May 5th or 6th, and the premium paid shortly thereafter; the exact date of the payment not appearing in the record. In the view we take, whether he knew or did not know of his condition is immaterial. His application stated that he did not have any disеase of the heart or blood vessels, and the existence of the same state of health when the policy was delivered was expressly agreed to be a condition preсedent to the insurance becoming effective. This condition was not performed. As the Supreme Court stated in Stipcich v. Insurance Co., 277 U. S. 311, at page 321,
The defendants argue that the condition precedent should be construed to mean that Ossen had no disease of the heart so far as he knew or believed. The argument runs that since question 14 of the application reads, “Are you now in good health so far as you know and believe?” the same limitatiоn of knowledge and belief should be read into question 21, “Have you now, or have you ever had, * * * any disease of heart or blood vessels * * * or any other disease or injury? Give details, dates, еtc., of any history noted above.” While it is true that the applicant could not give details of any disease of which he was unaware, his answer to question 21 was a definite “No.” The condition рrecedent required his health to be “the same as described in this application.” He described himself therein as not having any disease of the heart or blood vessels and this was the statе of health which was required to exist when the policy was delivered. Moulor v. American Life Ins. Co., 111 U.
But even if the opposite conclusion were reached, it would not aid the аppellants. The stipulation also required his occupation to remain the same as described in the application. Ossen testified definitely that he was not in any business after March, 1930. Thе testimony that he went out of business on account of his health is very weak and is contradicted. But the reason for leaving the occupation described in his application is immateriаl. The parties stipulated that his continuance in the same occupation should be a condition precedent to the insurance attaching. There is no ground to read this, as. the аppellants contend, as meaning that he should not change to a more hazardous occupation. We cannot remake the contract of the parties. His change оf occupation was alone enough to prevent the policy from going into effect. See Prahm v. Prudential Ins. Co., 98 N. J. Law, 335,
The appellants have also contended that section 107 (f) of the New York Insurance Law (Consol. Laws, c. 28) applies to this policy and avoids the effect of the condition precedent. We do not think the statute is applicable, howеver, under the well-settled rule that where the parties have stipulated that the policy shall not take effect until delivery to the insured and payment of the first premium, the contract is governed by the law of the state where these events occur. Northwestern Mut. Life Ins. Co. v. McCue,
The decree is affirmed.