168 A. 637 | N.J. | 1933
On May 1st, 1930, appellant issued a policy of insurance upon the life of respondent's father, Barney Laden. The insured died on April 20th, 1931. Tumor of the media terminus was the cause of death. The policy provided that it should be incontestable after it had been in force for a period of two years from the date of issue. Respondent's bill alleged that insured, prior to his death, requested appellant, in the manner provided by the policy, to designate her as the beneficiary thereunder, and prayed that appellant be decreed to endorse the requested change of beneficiary on the policy, and pay the amount thereof to her. Appellant counter-claimed, alleging that the policy was "fraudulently obtained," in that false statements and representations relative to material matters were made by the insured "with intent to deceive" appellant, and praying a rescission of the contract and a surrender of the policy for cancellation.
The false statements specified were (a) that he was in good health; (b) that he had never been sick; (c) that he was without any physical defect or infirmity; (d) that he had never had asthma, bronchitis or tumor, and (e) that he had never been attended by any physician in the preceding period of five years.
The learned vice-chancellor concluded that the insured, in making the statements and representations claimed to be false, did not have an intent to deceive, and that they were therefore not "fraudulent" within the meaning of the policy provisions required by chapter
Appellant insists that these representations were untrue in fact, and related to matters material to the risk assumed, and that even though made without conscious fraud, it was entitled to a rescission in equity. Passing the question as to the obligation resting upon appellant, under the issue framed, *380
to prove moral or conscious fraud (Metropolitan Life InsuranceCo. v. Sussman,
The insured's consultations with his physician related to a coughing affection. The first occurred on May 11th, 1929, when the physician called at his home to visit a patient who resided there. Thereafter he called at the physician's office on three or four occasions. The physician testified that his diagnosis was asthmatic bronchitis. He did not, however, inform the insured that this was his conclusion; and it is clearly inferable from his testimony that he was unable to find a pathological basis for the condition in question. He agreed that the coughing was caused by the tumor which resulted in death, but obviously this was a subsequently formed opinion, based upon the discovery of this malignant growth during his last illness. He was concededly unaware until then of the existence of the tumor. He apparently regarded the condition as trivial, and merely advised the insured to cease smoking. The proofs do not show that he prescribed medicine or administered treatment in any form. Appellant's medical examiner observed the condition that moved the insured to consult his physician. He answered thus the query as to whether there was any disease or impairment of the respiratory system: "Sounds louder over upper bronchial tubes; slight throat cough once in a while; wheezing due to smoking." He refused to classify the insured as a first class risk because he was an "excessive smoker." Appellant's underwriter withheld approval of the application, and an examination *381
by another physician was ordered. Upon his report the application was approved. These examinations resulted, apparently, in the disclosure of the same symptoms found by the insured's physician, and a like diagnosis. There was, in these circumstances, no false representation by the insured. Cf. Clayton v. General, c.,Assurance Corp.,
The questions relating to the state of insured's health, and his affliction during the specified period with any of the named diseases, necessarily were directed to insured's knowledge only. They sought to probe the insured's mind, and if he answered truthfully to the full extent of his knowledge, there was, necessarily, no false representation. The questions called only for the facts within the insured's knowledge, and his bona fide
belief and opinion. Even in the case of warranties, the rule adopted by this court is that, with respect to questions as to matters that the insurer must know are not within the personal knowledge of the applicant, and with respect to those that call, not for definite statements of fact, but for statements of belief or opinion, the letter of the contract is to be controlled by its spirit and purpose, and the answers will be deemed warranties only of the bona fide belief and opinion of the applicant.Henn v. Metropolitan Life Insurance Co.,
For the reasons herein stated, the decree will be affirmed.
Decree affirmed, with costs.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 14.
For reversal — None.
