Glickman v. New York Life Ins. Co. (In re Katz' Estate)

• Decision Date: 20 July 1943
• Citation: 50 N.E.2d 538,291 N.Y. 45
• Parties: GLICKMAN v. NEW YORK LIFE INS. CO. In re KATZ' ESTATE.
• Court: New York Court of Appeals Court of Appeals

291 N.Y. 45

50 N.E.2d 538

GLICKMAN

v.NEW YORK LIFE INS. CO.

In re KATZ' ESTATE.

Court of Appeals of New York.

July 20, 1943.

Suit by Elaine Florence Glickman, as administratrix of the estate of Celia Katz, deceased, against New York Life Insurance Company on a life policy. Appeal by plaintiff from a judgment, entered December 10, 1942, upon an order of the Appellate Division of the Supreme Court, 265 App.Div. 882, 38 N.Y.S.2d 241, which (1) reversed, on the law, a judgment in favor of plaintiff's intestate entered upon a verdict directed by the court at a Trial Term (F. E. Johnson, J.) and (2) directed a dismissal of the complaint on the law. During the pendency of the appeal to the Appellate Division the original plaintiff died, whereupon the administratrix of her estate was substituted in her place.

Affirmed.

RIPPEY and LEWIS, JJ., dissenting. Harry Malter and Isadore B. Hurwitz both of New York City, for appellant.

Ronald B. Swinford, Kenneth de F. Carpenter, and Ferdinand H. Pease, all of New York City, for respondent.

DESMOND, Judge.

The suit is on a life insurance policy. The insurer's defense is based on what the insurer calls the violation of a condition precedent which violation, according to defendant, produced a situation where, although a policy was issued, no insurance thereunder ever took effect. On December 13, 1939, Louis C. Katz applied to defendant for a $5,000 policy of insurance on his life. In the application form which was furnished to him by defendant and which he signed, there appeared this language: ‘It is mutually agreed as follows: 1. That the insurance hereby applied for shall * * * go into force * * * only if the applicant has not consultedor been treated by any physician or practitioner since his medical examination * * *.’ It is conceded that the applicant Katz did, without defendant's knowledge, consult his own physician after he had undergone a medical examination conducted by a physician nominated by the insurer. The company's medical examination was had on December 15, 1939, and the company issued the policy to Mr. Katz on January 17, 1940. His visits to his own physician (really two physicians acting together) were on January 15 and 16, 1940. His own physician, called as a witness by defendant, gave evidence that the tests made on those dates and other information then obtained, disclosed that the applicant Katz was suffering from a duodenal ulcer. The witness stated that the symptoms of such an ulcer will, ‘generally speaking,’ be completely relieved after four to six weeks of a dietetic regime, combined with complete or partial rest. Defendant's assistant medical director, who had never seen applicant Katz but who had approved the issuance of the policy on the basis of information made available to the company, was another witness. He was asked whether a duodenal ulcer was serious; plaintiff objected to the question but the Trial Justice announced that he would take judicial notice that it was a serious condition; the witness then answered the question in the affirmative, saying that ‘it may be considered so.’ This physician was prevented, on plaintiff's objection, from stating what action defendant would have taken, had it known of the ulcer. There was no other testimony as to the insured's state of health except that of his wife who told of her husband's active life and apparent vigor and freedom from illness about the time of the issuance of the policy. It is undisputed that the insured died on June 8, 1940, from coronary sclerosis, a disease unrelated to the intestinal ulcer. At the close of the proof, defendant moved for a directed verdict, which was denied, then asked the Court to let the case go to the jury, which motion was denied also; plaintiff's motion for a directed verdict was thereupon granted. The Appellate Division unanimously reversed and dismissed the complaint, citing Goldman v. New York Life Ins. Co., 152 Misc. 289, 273 N.Y.S. 151, affirmed 242 App.Div. 665, 273 N.Y.S. 382;New York Life Ins. Co. v. Watkin, 229 App.Div. 211, 241 N.Y.S. 441, affirmed 256 N.Y. 618, 177 N.E. 164;Polachek v. New York Life Ins. Co., 151 Misc. 172, 270 N.Y.S. 884, affirmed 243 App.Div. 692, 277 N.Y.S. 955, and Geer v. Union Mut. Life Ins. Co., 273 N.Y. 261, 7 N.E.2d 125. In none of those cases did this court pass on the precise question here presented to us, although the Goldman, Watkin and Polachek cases dealt with the same language found in the application here, language which says distinctly that the policy shall not go into effect if the applicant on his own behalf consults a physician after he has been examined by the insurance company's physician and before the policy is actually handed to him. In Drilling v. New York Life Ins. Co., 234 N.Y. 234, 137 N.E. 314, we held valid and effective a somewhat similar agreement written into the application, that the insurance was not to take effect unless the policy should be delivered and the premium paid while the applicant was in good health. We need not go so far as did the Supreme Court in Stipcich v. Metropolitan Life Ins. Co., 277 U.S. 311, 48 S.Ct. 512, 72 L.Ed. 895 (also involving a duodenal ulcer) where it was held that, without any promise or covenant in the application blank, an applicant was under a duty to inform the insurer fully of changes in his physical condition seriously affecting his health, which duty, held the Supreme Court, rested on no stipulation of the parties but was imposed by law because of the relationship of the parties and their obligations one to the other. We have no doubt that, unless our statutes dictate a different result, the agreement signed by applicant Katz is valid and to be interpreted as written, at least in cases where, as here, the visit to the physician has to do with an ailment or condition which is reasonably to be considered serious.

Appellant urges the applicability to her case of sections 142 and 150 of the Insurance Law, Consol.Laws, c. 28, as revised in 1939. (Laws 1939, c. 882.) As to section 142, we see in the dealings between the parties to this contract no violation of subdivision 1, which requires every life policy to contain the whole contract between the parties to this contract no violation of evidence of the application unless a copy thereof is attached to the policy when issued. There is no requirement that a copy of the application be left with the applicant, or that the insurer make further inquiries, when issuing the policy, as to applicant's health or visits to doctors. Mr. Katz's signature to the application bound him as an applicant or offeror. Drilling v. New York Life Ins. Co., supra. Subdivision 3 of section 142 obviously has no place in this discussion since it relates to statements made by the applicant, and no such statements are litigated here. The same is true of section 149.

Nor do we see that section 150 of the statute serves appellant's cause in any way. That section uses the term ‘warranty’ to cover an insurance contract provision which has the effect of requiring, as a condition precedent of the taking effect of the insurance contract, the existence of a fact which tends to diminish, or the non-existence of a fact which tends to increase, the risk of the occurrence of any loss within the policy's coverage. Section 150 then lays down the rule that no breach of such a ‘warranty’ shall avoid the insurance contract ‘unless such breach materially increased the risk of loss, damage or injury within the coverage of the contract * * *.’ Appellant says that under section 150 there must now be shown a ‘de facto increase in the risk.’ But the only showing here is that the applicant's visits to his physicians disclosed the existence of an intestinal ulcer, and that an intestinal ulcer is a serious condition. Apparently in section 150 the Legislature was seeing to it that a policy of insurance will not be aboided by proof of an immaterial ‘breach of warranty’. Arguments and...