113 N.J. Eq. 288 | N.J. Ct. of Ch. | 1933
The bill is to cancel a life insurance policy on the ground of fraud. The policy, $2,000, was of the endowment, accident *289 and disability type, $20 a month in case of total and permanent disability. It was written April 17th, 1930, and in June, 1931, learning that the insured, Winnick, was about to file a claim for total and permanent disability, the company, after investigation, tendered the paid premiums and demanded return of the policy. The charge of fraud is that in his written application for the insurance, dated March 31st, 1930, Winnick was called upon to "name all causes for which you have consulted a doctor in the last ten years," and he stated "occasional cold." And asked the question: "How long since you have consulted a doctor and for what?" he answered: "About seven years — cold in the head."
In truth, he had consulted his family physician at the latter's office, sixteen times in the then past seven years and not once for a cold. The false representation, if material and relied upon to the complainant's injury, presents the plainest kind of a case for relief in equity as well as at law.
The defendant had consulted Dr. Butler, December 29th, 1923, "for indigestion, gas and so forth;" August 11th and 29th, 1924, "for the same abdominal complaints;" July 13th, 1925, for an abdominal cist; July 16th and 20th, 1925, for the "same vague abdominal symtoms;" January 3d 1927, for infected teeth; January 18th, 1927, for "vague joint pains all through his body;" July 28th and August 19th, 1927, "the same old indigestion symptoms." February 20th, 1928, the same pains, and upon X-ray examination nothing was found to account for his complaint outside of a falling of the large bowel, ptosis of the bowel, for which a supporting abdominal belt was advised; September 29th, 1928, "for general pains all over his body;" October 2d and 3d 1928, for pain on swallowing. On October 7th, 1930, six months after the policy was issued, he suffered a typical case of angina pectoris, of which the doctor says "looking back on it, it was probably the gradual development of the condition." The physician, during the treatment, had no diagnosis for his patient's trouble; he was baffled and towards the last thought the symptoms neurotic. Winnick says he was always in good health, occasionally suffering from an upset stomach, that he *290 never suspected he was suffering from an heart ailment. Now, what the defendant says may all be true enough and he may have honestly regarded his protracted abdominal complaints as trifling, but the insurance company wanted, and had the right to be given the information it sought in order to form its own conclusion as to the risk. The false statement, that it was about seven years since he had consulted a doctor and then only for a cold, was assuring of good health, and disarming. The company did not solicit his opinion, but asked for a fact, of which the defendant had definite knowledge, and a truthful answer would have put it on guard and further inquiry. No question concerning an applicant's physical condition and insurability is of greater importance to the insurer than the medical history. The false answer was material as a matter of law; that it was relied upon as material, is proved; it is the testimony of the medical director of the insurance company who passed upon the application, that had the truth been known, the risk would not have been accepted.
The defendant's plea that he did not intend a fraud is vain, and his contention that only purposeful fraud will defeat his right to the policy is misapplied. The nature of the question and the falsity of the answer precludes the plea; and there is a conclusive presumption of purposeful fraud. The question was unqualified, as was the answer. His statement that he had not consulted a doctor in seven years was untrue and he knew it to be untrue. He cannot be heard to say he did not mean what he said.Pom. Eq. Jur. 1835; Metropolitan Life Insurance Co. v.Sussman, relied upon by the defendant, holds no different doctrine. The bill was to cancel a policy for fraud, and the court of errors and appeals, in
We are not here dealing merely with an equitable fraud, as inCommercial Casualty Insurance Co. v. Southern Surety Co.,
It is found that the representation was untrue, untrue to the knowledge of the defendant, that it was material and was relied upon by the complainant to its damage. The policy will be ordered surrendered upon repayment of all premiums. *295