Ball v. Granite State Mut. Aid Ass'n

• Decision Date: 11 March 1887
• Citation: 64 N.H. 291,9 A. 103
• Parties: BALL v. GRANITE STATE MUT. AID ASS'N.
• Court: New Hampshire Supreme Court

9 A. 103

64 N.H. 291

BALL

v. GRANITE STATE MUT. AID ASS'N.¹

Supreme Court of New Hampshire.

March 11, 1887.

Reserved case from Cheshire county.

Assumpsit upon a certificate of life insurance. Verdict for the plaintiff, and exceptions by the defendant, which are fully stated in the opinion.

Batchelder & Faulkner and E. M. Forbes, for defendant.

J. H. Albin, for plaintiff.

CLARK, J. This is an action of debt upon a certificate of membership issued to Alvin W. Ball, dated November 30, 1883, wherein the defendant agreed to pay to the plaintiff if living, if not, to the heirs at law of Alvin W., "within sixty days after due proof of the death of said member, a sum equal to the amount received from one death assessment, but not to exceed $5,000, provided said member continues to observe and comply with the covenants and conditions specified in this certificate during his life; otherwise the membership, with all moneys paid to the association, and all claims against the same, shall be forfeited, and this certificate shall be null and void." There was a verdict for the plaintiff for $5,278.23.

The certificate of membership upon which the action is founded, declares that it is issued and accepted under the covenants and conditions "that no misrepresentations have been made; no untrue answers given to the questions contained in the application, which is hereby made a part of this certificate, and a warranty on the part of said member and the beneficiary; no facts suppressed; and no fraud or deception used by the said member calculated to deceive or mislead the agent or officers of the association." The application contained the following clause: "It is hereby agreed that the above and foregoing application, with the declarations and statements therein made, shall form the basis of the contract by and between the above-named applicant and the Granite State Mutual Aid Association, and that if any of these statements and answers therein made are untrue and false, or any facts touching the health of the applicant are concealed, or any statements or untrue answers made tending to deceive the association, or if the applicant neglects to pay any of the assessments or annual payments, * * * that then, in either event, the contract shall become null and void, and all moneys which shall have been paid shall be forfeited, and the policy issued to the applicant hereupon shall not be binding upon the association." In answer to questions contained in the application, Ball stated that he had never been afflicted with any disease of the lungs or throat, and that he was then free from all diseases and complaints, to the best of his knowledge and belief. It is conceded that these answers were untrue, and that Ball then had, and for several years had to his knowledge had, a disease called catarrh, by which both his throat and lungs were more or less affected, and his health impaired.

Unless these facts are controlled or modified by other circumstances, the contract of insurance was void. The statements of Ball in answer to the inquiries in the application concerning his health, whether they are regarded as warranties or representations, were made conclusively material by the express agreement of the parties, and the policy was to be void if they were untrue; and, it being conceded that they were untrue, the forfeiture contemplated by the agreement necessarily follows, unless it has been waived. May, Ins. § 206; Jeffries v. Life Ins. Co., 22 Wall. 47; Ætna Life Ins. Co. v. France, 91 U. S. 510; Foot v. Ætna Life Ins. Co. of Hartford, 61 N. Y. 571; Barteau v. Phoenix Ins. Co., 67 N. Y. 595; Price v. Phosnix Mut. Life Ins. Co., 17 Minn. 497, (Gil. 473;) Lay v. Mutual Ben. Life Ins. Co., 1 McArthur,41, 29 Amer. Bep. 565; Vose v. Eagle Life & Health Ins. Co., 6 Cush. 42; Miles v. Connecticut Mut. Life Ins. Co., 3 Gray 580; Campbell v. New England Mut. Life Ins. Co., 98 Mass. 381; Lowell v. Middlesex Mut. Fire Ins. Co., 8 Cush. 127; Hartwell v. Alabama Gold Life Ins. Co., 33 La. Ann, 1353...