Dwyer v. Mut. Life Ins. Co. of N.Y.

• Court: New Hampshire Supreme Court
• Writing for the Court: PARSONS, C. J.
• Citation: Dwyer v. Mut. Life Ins. Co. of N.Y., 58 A. 502, 72 N.H. 572 (N.H. 1904)
• Decision Date: 07 June 1904
• Parties: DWYER v. MUTUAL LIFE INS. CO. OF NEW YORK.

58 A. 502

72 N.H. 572

DWYER

v. MUTUAL LIFE INS. CO. OF NEW YORK.

Supreme Court of New Hampshire. Hillsborough.

June 7, 1904.

Exceptions from Superior Court; Peaslee, Judge.

Assumpsit by Timothy D. Dwyer against the Mutual Life Insurance Company of New York on a life insurance policy. Verdict directed for defendants, and case transferred from the superior court on plaintiff's exceptions. Exceptions overruled.

John O'Neill, for plaintiff.

Oliver E. Branch, for defendants.

PARSONS, C. J. The defendants deny liability upon the policy of insurance in suit, upon the ground that the undisputed evidence discloses a breach of an express warranty in the contract, necessarily fatal to its validity as matter of law. They further contend that the evidence does not disclose such insurable interest in the plaintiff as to enable him to maintain the action. The exception to the verdict ordered for the defendants raises the question whether there was any evidence which should have been submitted to the jury upon each proposition.

In the absence of statutory prohibition, of which no claim is made, "parties to insurance, like parties to other contracts, may * * * incorporate into their contract such conditions, whether apparently material or immaterial, as they see fit. If the assured has in express terms stipulated and warranted that a certain fact is true, that warranty makes the fact a material one, and, however immaterial it may seem in other respects, an indispensable condition in the compact. * * * 'Such express warranty is always a part of the policy, but, like any other part of the express contract, may be written in the margin, or contained in proposals or documents expressly referred to in the policy, and so made a part of it.' * * * But while this unquestionable effect is given to express warranties or conditions, when ascertained, it is a well-established doctrine of the law of insurance that not every representation made by the assured in his application or treaty for a policy is of that nature in order to have such an effect, the representation must be material, or * * * the fact represented must be 'one upon which the parties can be presumed to have proceeded in making the contract' * * * 'A false representation cannot avoid the policy, unless it be on a point material to the risk.'" Boardman v. Insurance Co., 20 N. H. 551, 555. As to the foregoing principles, there is no controversy in the authorities. The falsity of a statement which the parties have expressly warranted to be true, or agreed shall constitute a material part of the contract, avoids the policy; while, if the parties have not agreed that the statement shall be considered material, the policy is not affected, unless the misstatement is in a matter of fact material to the risk assumed by the insurer. May, Ins. §§ 156, 170, 183; Ball v. Association, 64 N. H. 291, 9 Atl. 103; Campbell v. Insurance Co., 98 Mass. 381; White v. Society, 163 Mass. 108, 114, 39 N. E. 771, 27 L. R. A. 398; Pawson v. Watson, Cowp. 785, 787; De Hahn v. Hartley, 1 D. & E. 343. The plaintiff refused to accept the policy in the form in which it was first made out, and it was afterward changed to avoid his objection. From his subsequent acceptance of the policy, and his commencement of a suit upon it, it must be held, in the absence of fraud or imposition, that the plaintiff had notice of, understood, and agreed to, and is bound by, the terms, limitations, and conditions contained therein. Brown v. Insurance Co., 59 N. H. 298, 307, 47 Am. Rep. 205; Davis v. Insurance Co., 67 N. H. 335, 338, 39 Atl. 902.

The policy states that it issued in consideration of the application, which is made a part of the contract. The plaintiff having, by the acceptance of the policy, expressly assented that a portion of the contract was contained in the application, it is immaterial whether he acquainted himself with the contents of the application or not. He had the power to so agree, and, unless he was induced to make the agreement by fraud or imposition, is bound by his agreement and by the stipulations of the application. Monitor Mutual Ins. Co. v. Buffum, 115 Mass. 343, 345; Grace v. Adams, 100 Mass. 505, 97 Am. Dec. 117, 1 Am. Rep. 131. The application contained the clause following:"I hereby agree that all the following statements and answers, and all those I make to the company's medical examiner, in continuation of this application, are by me warranted to be true." Following this are certain questions and answers, the whole being subscribed by the insured, the plaintiff's brother. There is no claim that any statements made in the application are untrue. The opposite side of the sheet containing the application is headed "Medical Examiner's Report," and contains a large number of questions and answers, and a certificate signed by the insured that his...