29 A.D. 72 | N.Y. App. Div. | 1898
This action was begun August 11, 1897, to recover on a policy of life insurance dated February 14, 1896, by which the defendant insured the life of Frederick Vetter for $1,000, payable to his executors, administrators or assigns. The policy was issued on an application dated February 13, 1896, and signed by Frederick Vetter, which was copied into and forms part of the policy, and contains this provision: “ Provided always that, if the necessary payments be made to keep said policy in force, it shall, in the event of my death, be incontestable for the sum payable thereunder except as therein set forth.”
On the trial the defendant offered to prove but one defense, that the insured made false representations in his application in respect to former applications by him made for insurance on his life.
The application signed by the insured contains the following statement:
“ 8tli. That I have never made application for insurance on my life to any company, association or society, upon which application no policy was or has yet been issued to or received by me for the full amount and kind, and at the rate applied for, and that no physician has ever given an unfavorable opinion upon my life with reference to life insurance, except as here stated.”
The application also contains the following provision : “ I hereby agree and bind myself as follows: That the truthfulness of the statements above made or contained, by whomsoever written, are material to the risk, and are the sole basis of the contract with the said association.”
The defendant offered to prove that in 1879 Frederick Vetter applied to an agent of the Mutual Life Insurance Company for insurance on his life; was examined by the medical examiner of that company in the city of Rochester, who made an unfavorable report, and that the application was rejected and no policy was issued. This offer was objected to on the ground that, by the terms of the policy, it became incontestable upon the death of the insured. The objection was sustained, and the defendant excepted. This exception j>resents the only question raised on this motion.
In Wright v. Mutual Benefit life Association (43 Hun, 61; affd., 118 N. Y. 231) the policy contained a provision that no question as to its validity should be raised unless raised within two years after the date thereof and during the life of the insured. The application in the case cited, which was made a part of the policy, I>rovided that in case any misrepresentation, fraudulent or untrue answers should be made, or any facts be suppressed, the policy should
In Teeter v. United Life & Accident Insurance Association (11 App. Div. 259) the policy provided that it should be indisputable after two years from its date. The application in that case stated that all the representations and statements therein contained were true, and that the policy was issued on the faith of them. In the application the usual statements were made, and it was shown that on the 26th of Jnly, 1889, the policy had lapsed, and that, for the purpose of procuring a reinstatement, the insured stated, in writing, that he was in good health. More than four years after the reinstatement the insured died. The defendant answered and alleged that the insured was not in good health when he made his application for reinstatement, and that the policy was void. It was held that the stipulation in regard to the incontestability of the policy applied to the contract of reinstatement, and that the defendant was barred from showing that the statement made in his application for reinstatement was fraudulent.
These cases are decisive of the case at bar, unless it can be distinguished from them, which the learned counsel for the defendant attempts to to by asserting that the words “ except as therein set forth,” in the clause relating to the incontestability of the policy, takes it out of the authorities cited. I am unable so to construe these words. These words evidently refer to the promissory warranties and stipulations contained in the policy and application, as distinguished from the affirmative warranties which relate to facts asserted to be in existence at the date of the policy. The promissory covenants in the case at bar are that the insured shall pay annually forty dollars and four cents on the anniversary of the policy
Defendant’s motion for a new trial should be denied, and judgment ordered on the verdict, with costs.
All concurred.
Defendant’s motion for a new trial denied, and judgment ordered on the verdict for the plaintiff, with costs.