Duff v. Prudential Ins. Co. of America

• Decision Date: 18 June 1917
• Docket Number: No. 74.,74.
• Citation: 90 N.J.Law 646,101 A. 371
• Parties: DUFF v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: New Jersey Supreme Court

101 A. 371

90 N.J.Law 646

DUFF

v. PRUDENTIAL INS. CO. OF AMERICA.

No. 74.

Court of Errors and Appeals of New Jersey.

June 18, 1917.

(Syllabus by the Court.)

Appeal from Supreme Court.

Suit by Richard H. Duff, administrator, etc., of John Sullivan, deceased, against the Prudential Insurance Company of America. From a judgment of the Supreme Court, reversing a judgment of the district court of Jersey City in favor of the defendant, it appeals. Judgment reversed, and judgment of district court affirmed.

Randolph Perkins, of Jersey City, for appellant. Hershenstein & Finnerty, of Jersey City, for appellee.

BLACK, J. This was a suit brought on an industrial life insurance policy, issued to the decedent, John Sullivan, by the defendant company, for the sum of $244, on September 21, 1914. The insured died of tuberculosis at the City Hospital, in Jersey City, June 13, 1915. The case was tried, in the First district court of Jersey City, by Judge Carrick, without a jury, resulting in a judgment rendered in favor of the defendant.

The trial court found, as a fact, the statement made by the insured, in his application, that he had never suffered from consumption, in view of the previous history of the case, to have been a willful untruth, which vitiates the policy and prevents recovery thereunder. The evidence in the record amply supports this finding of fact by the trial court. The case was reviewed in the Supreme Court, which reversed the judgment of the district court, on the ground that the false statement in the application, if it was false, did not vitiate the policy, in the absence of proof that the company was induced to write the policy through fraud. The Supreme Court also said the case is substantially, though not precisely, similar to Melick v. Metropolitan Life Insurance Co., 84 N. J. Law, 437, 87 Atl. 75, affirmed 85 N. J. Law, 727, 91 Atl. 1070, in which the determining factor was the continued acceptance of weekly premiums by the company. We do not agree with the conclusion reached by the Supreme Court. We think the judgment of the Supreme Court should be reversed, and the judgment of the district court affirmed.

In the application for the policy of insurance, which was dated September 9, 1914, the insured stated that he had never suffered from consumption, that he was in good condition of health, and had no serious disease. The company defended on the ground of the falsity of these statements. The policy itself does not refer to the application for insurance. The statements in the application are not made warranties or...