100 N.H. 383 | N.H. | 1956
The insurer’s first defense is that the application for the policy contained misrepresentations concerning the medical history of the insured. The evidence disclosed that the insured
The statute has not been amended since these decisions, and this court has not reconsidered them. It may be questioned whether this statute in its present form permits the issuance of a policy to bind the insurer to the extent that a reasonable person in the position of the insured would understand that it did but improvement in this respect should be initiated by the Insurance Department or by the Legislature and not by the judiciary. Consoli v. Insurance Co., 97 N. H. 224, 226.
In the present case, however, it does not appear that the application was endorsed upon or attached to the policy and made a part thereof as required by RSA 408:9. See Amoskeag Trust Co. v. Prudential Life Insurance Company of America, 88 N. H. 154, 158; Gleason v. Insurance Co., 73 N. H. 583. The statute expresses the public policy of the state that insurance applications should see the light of day and that the policyholder should have an opportunity to read them. Anno. 93 A. L. R. 374. The failure of the insurer to attach to the policy a copy of the application prevents its reliance on misstatements in the application. Lampke v. Metropolitan Life Ins. Co., 279 N. Y. 157; 1 Couch, Cyc. Insurance, s. 138. Accordingly the misstatements in the application itself cannot be relied upon by the defendant as a defense. This brings us to the crucial question of whether the insured complied with the provisions of the policy that she be in sound health when the policy was issued.
New Hampshire is among the jurisdictions which adhere to the
Some recent decisions have considered the actual good health doctrine harsh and have adopted the view that good health should be given a subjective test — good health as far as the applicant is aware. Bronx Sav. Bank v. Weigandt, 1 N. Y. (2d) 545; Brubaker v. Beneficial Standard Life Ins. Co., 130 Cal. App. (2d) 340; 8 Vand. L. Rev. 919; 30 Notre Dame Law. 697; 1955 Annual Survey of American Law 403. It is argued that the ordinary applicant for' insurance is not a medical prophet and should not be expected to insure the exact reality of his physical condition when the disease or ailment may be latent or unknown. See Moulor v. American Life Ins. Co., 111 U. S. 335; Prosser, Innocent Misrepresentation of Health in Insurance Applications, 28 Minn. L. Rev. 141.
It may be argued that the Packard case carries strict construction against the policyholder to a logical extreme, but it is noted that that case has been followed in Karp v. Metropolitan Life Ins. Co., 86 N. H. 124, where an applicant who was ignorant of his heart disease was held to have violated the sound or actual good health condition precedent and so voided the policy. See note, Cost and Coverage of Industrial Life Insurance, 61 Yale L. J. 46 (1952). The parties to this litigation are entitled to have the insurance contract determined under those authorities.
In this case although the parents and relatives of the insured testified to her good health at the time the policy was issued, the uncontradicted medical evidence was that she died from broncho-pneumonia caused by bronchiectasis which existed at the time of
Judgment for the defendant.