Dimick v. Metro. Life Ins. Co.

Decision Date22 June 1903
Citation69 N.J.L. 384,55 A. 291
PartiesDIMICK v. METROPOLITAN LIFE INS. CO.
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

Error to Supreme Court.

Action by Bridget Dimick against the Metropolitan Life Insurance Company. Judgment for plaintiff. Defendant brings error.

Reversed.

Robert H. McCarter, for plaintiff in error.

John P. Stockton and Warren Dixon, for defendant in error.

PITNEY, J. This is an action upon a policy of insurance issued December 4, 1899, by the defendant below (now plaintiff in error) upon the life of John W. Dimick, payable in case of his death to his wife, Bridget, who was the plaintiff below. The insured died January 24, 1900. After a trial and verdict upon pleadings held insufficient for the purpose of raising the real defense (Dimick v. Metropolitan Life Ins. Co., 67 N. J. Law, 367, 51 Atl. 692), a new trial was had upon amended pleadings, and resulted in a verdict in favor of the plaintiff rendered pursuant to the direction of the trial judge. A writ of error brings the consequent judgment here for review, and with it is returned a bill of exceptions sealed upon the direction of a verdict.

The declaration embodies a copy of the policy of insurance with its conditions, and avers, generally, the performance of all conditions, pursuant to section 126 of the practice act (Gen. St. p. 2554). The defendant pleaded the general issue, and in a special plea set up a breach of conditions precedent, because of false answers alleged to have been given by the insured in response to certain inquiries contained in the application for the insurance, which application, by the terms of the policy, is made a part of it; among others, the false answer "None" in reply to the question, "State amount of insurance you now carry on your life"; the false answer "None" in reply to the question, "Is there any other insurance in force on your life?" and the false answer "No" in reply to the question, "Have you ever been an inmate of an asylum or hospital; if so, when and for what?"

The policy sets forth that the engagements of the defendant company are undertaken "in consideration of the answers and statements contained in the printed and written application for this policy, all of which answers and statements are hereby made warranties and are hereby made part of this contract"; that the contract is "subject to the conditions set forth on the reverse side hereof, all of which are hereby made part of this contract, and are accepted by the insured and assured as part thereof as fully as if herein recited." Among the conditions thus indorsed are the following, viz.: "Third. If any answer or statement in the application herein referred to is not true * * * this policy shall be void, and all premiums paid shall be forfeited to the company, except as provided below" (none of the exceptions has any bearing upon this case). "Sixth. Proofs of death shall be made in the manner and to the extent required by blanks furnished by the company, and shall contain answers to each question propounded to the claimants. * * * The proofs of death shall be evidence of the facts therein stated in behalf of, but not against the company." "Ninth. The contract between the parties hereto is completely set forth in this policy and the application therefor taken together, and none of its terms can be varied or modified, nor any forfeiture waived or premiums in arrears received except by agreement in writing signed by either the president, vice president, secretary or actuary, whose authority for this purpose will not be delegated; no other person has or will be given authority."

The application referred to in the policy was made prior to the date of the latter, and passed into the possession of the company. It was made upon printed forms, and consists of three parts, designated respectively "A," "B," and "C." Part A is entitled "Application to the Metropolitan Life Insurance Co.," is dated November 19, 1899, and signed by the insured and the beneficiary. It contains a statement of the name and residence of John W. Dimick, the amount and kind of insurance applied for, the date and place of his birth, his present occupation, etc. The information is in the form of written replies to printed questions. Among the questions is this: "E. State amount of insurance you now carry on your life, with name of company or association by whom granted, and the year of issue. (Enumerate each.)" To this the answer was "None." Then follow two questions, bracketed together, and lettered "F." The first Is: "If insured in this company, in ordinary, industrial or intermediate, give policy numbers." To this there was no reply. The second question is: "Is there any other insurance in force on your life?" to which the answer is "None." At the foot of this part of the application is the following declaration, above the signatures of the beneficiary and insured: "It is hereby declared, agreed and warranted by the undersigned that the answers and statements contained in the foregoing application and those made to the medical examiner, together with this declaration, shall be the basis and become part of the contract of insurance with the Metropolitan Life Insurance Company; that they are full and true and are correctly recorded, and that no information or statement not contained in this application, and in the statements made to the medical examiner, received or acquired at any time by any person, shall be binding upon the company or shall modify or alter the declarations and warranties made therein; that the persons who wrote in the answers and statements were and are our agents for the purpose and not the agents of the company; and that the company is not to be taken to be responsible for its preparation or for anything contained therein or omitted therefrom; that any false, incorrect or untrue answer, any suppression or concealment of facts in any of the answers, any violation of the covenants, conditions or restrictions of the policy, any neglect to pay the premium on or before the date it becomes due, shall render the policy, null and void, and forfeit all payments made thereon." Part B is entitled: "Statement made to the medical examiner by John W. Dimick in connection with application on reverse side of this sheet. To be fully completed by the examiner before the applicant affixes his signature. The medical examiner will impress upon the applicant the importance of full and truthful answers to every interrogatory." Then follow numerous questions that are intended to develop the history of the applicant in all matters pertaining to his health; he is asked specifically whether he has ever had certain enumerated diseases; whether he is ruptured; to give full particulars of any illness he may have had since childhood; to state when he was last confined to the house by illness, etc. One of the questions is this: "Have you ever been an inmate of an asylum or hospital? If so, when and for what?" and the answer is "No." At the foot is printed the following: "I hereby declare that the application to the Metropolitan Life Insurance Company for an insurance on my life, was signed by me, and that I renew and confirm my agreements therein as to the answers given above to the medical examiner, and I hereby declare that said answers are correctly recorded." It is dated November 23, 1899, and signed by John W. Dimick, but not by the beneliciary. Part C is entitled as follows: "Medical examination and report (no part of the declaration of the applicant)."

At the trial there was introduced in evidence a paid-up policy for $219 upon the life of John W. Dimick, issued by the Prudential Insurance Company, February 22, 1897, which was in force at the time the present application was made. That it was in force at John W. Dimick's death was admitted by the plaintiff in the written proofs of death signed by her and submitted to the defendant company in compliance with the condition indorsed upon the policy in suit. It was also in evidence that in the year 1893 John W. Dimick was for two weeks an inmate of a hospital at Englewood, in which town he resided, undergoing treatment for injuries received in a runaway accident, and that he was conscious during the whole of the time that he spent in the hospital. Notwithstanding this evidence the learned trial justice (in view of certain rebuttal testimony introduced by the plaintiff, which will be mentioned below) directed a verdict for the plaintiff, on the ground that no breach of warranty was shown.

We are inclined to agree with the contention made in behalf of the plaintiff (now defendant in error) that the negative reply to the question "State amount of insurance you now carry on your life," etc., is not applicable to the paid-up policy in the Prudential Insurance Company. If the question had stood alone it would have permitted, and perhaps required, the word "carry" to be construed in its colloquial sense, as equivalent to "possess" or "hold"; a meaning probably derived, however, from the custom of holding property that has been paid for with borrowed money (Cent. Diet, verb trans, "carry," pi. 14), and so hardly applicable to a paid-up policy that has ceased to be a burden to the insured. But the question did not stand alone; it was immediately followed by the two questions printed under the letter "F," viz.: "If insured in this company give policy numbers," and "Is there any other insurance in force on your life?" Certainly the second of these questions would not have been required if the former question was intended to apply to all insurance in force. Therefore, in aid of the validity of the contract, it is fair to ascribe to the word "carry" a limited sense, as applicable only to such policies of insurance as constituted a burden by requiring the continued payment of premiums.

With respect to the answer of the applicant that there was no other insurance in force on his life, counsel for the...

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