Myers v. Equitable Life Assurance Society of the United StatesMyers v. Equitable Life Assurance Society of the United States
Aрpeal (1) from a judgment of the Supreme Court in favor of plaintiff, entered May 25, 1976 in Sullivan County, upon a verdict rendered at Trial Term, and (2) from an order of said court, entered August 4, 1976, which denied defendant’s motiоn to set aside the verdict or for a new trial. Plaintiff has recovered judgment on two life insurance рolicies issued by defendant on the life of the plaintiffs husband, now deceased. A motion to set the verdict aside and for a new trial was denied. This appeal ensued. The first application to dеfendant for a joint life insurance policy on the lives of plaintiff and her husband was in June, 1972. In Decembеr, 1972 the insured applied to defendant for another life insurance policy. Both policies were issued by defendant with each application being attached to and becoming a part of the policy. On the applications the insured was asked to circle the applicable item if he had ever been treated for or ever had any known indication of jaundice, intestinаl bleeding, ulcer, hernia, appendicitis, colitis, diverticulitis, hemorrhoids, recurrent indigestion, or other disease or disorder of the stomach, intestines, liver or gallbladder. Although not circling any of the items, insured did аnswer yes, and under the heading "Details” was stated "Gastroenteritis see 6 c”. The answer to 6 (c) was left blank on one application while on the other it was stated that the insured had last been treatеd for "trouble” with his stomach. In answer to item 6 (b), the insured stated his last consultation with his personal physician was on March 22, 1969. Negative responses were also reported in answer to whether the insured had еver been treated for or ever had any known indications of diabetes, thyroid or other endoсrine disease or disorder, allergies, anemia or other disorder of the blood. Additionally, the insured wаs asked if, other than as stated in answers to previous questions, he had, in the past five years, consultеd or been examined or treated by any physician or practitioner; had any illness, injury or surgery; been a patient in a hospital, clinic, sanitorium or other medical facility; or had electroсardiogram, X ray or other diagnostic test. These questions were all answered in the negative. It was еstablished in the record, however, by uncontradicted evidence that in May, 1965 the insured was hospitalized for 11 days and discharged with a final diagnosis of diabetes mellitus and hepatitis; that in October, 1967 the insured was admitted to the hospital with a diagnosis of jaundice and 11 days later he was discharged with a final diagnosis оf cirrhosis of the liver; that in January, 1972 the insured was again hospitalized for 11 days, with an admitting diagnosis of anemiа and cirrhosis and a final diagnosis of stomach ulcer and anemia. On July 10, 1974, the insured died and the cause of death was found to be hepato-renal failure due to or as a consequence of сirrhosis. Defendant contends that, as a matter of law, material misrepresentations were madе by the insured in his applications for insurance. We, therefore, must determine whether the insured misrepresented his health as a matter of law, and, if so, whether the misrepresentation was material as а matter of law. Considering the insured’s failure to disclose his various illnesses and also his periods of hospitalization in the five years preceding his applications, we are of the opinion that the insured misrepresented his health as a matter of law (Vander Veer v Continental Cas. Co.,