122 A. 752 | N.J. | 1923
On the first trial of this case there was a direction of a verdict for defendant. This was reversed and a new trial ordered.Prahm v. Prudential Insurance Co.,
On appeal from the Supreme Court, where that tribunal sits as a court of review, the only proper assignment of error is, that the Supreme Court erred in giving judgment for the successful instead of the unsuccessful party. State v. Verona,
Appellant argues that where a policy of insurance provides that all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, as required by the insurance laws of New Jersey, the provision extends to every statement made in the application for the policy. That may be conceded, and yet the observation of the Supreme Court that where the application (which was expressly made a part of the contract) provided that the policy should not take effect until it should be issued and delivered by the company and the first premium paid thereon in full, while the health, habits and occupation of the applicant *290
are the same as described in the application, there can be no recovery upon it (unless the condition be waived) if it appears at the trial that the insured was in worse health, when the policy was issued and delivered, than as described in the application is well founded; and it is immaterial that any changed condition is known to him and concealed from the company with fraudulent intent. In other words, the validity of the policy depends not upon the knowledge of the insured and concealment by him with fraudulent intent, but upon the fact that he was in worse health at the time of the delivery of the policy than was the condition of his health as described in the application. See McAuliffe v. Metropolitan Life InsuranceCo.,
Judgment affirmed.
For affirmance — THE CHANCELLOR, PARKER, KALISCH, BLACK, KATZENBACH, WHITE, HEPPENHEIMER, ACKERSON, VAN BUSKIRK, JJ. 9.
For reversal — None.