Gross v. Commercial Cas. Ins. Co. of Newark

• Decision Date: 18 June 1917
• Docket Number: No. 110.,110.
• Parties: GROSS v. COMMERCIAL CASUALTY INS. CO. OF NEWARK.
• Court: New Jersey Supreme Court

101 A. 169

90 N.J.Law 594

GROSS

v. COMMERCIAL CASUALTY INS. CO. OF NEWARK.

No. 110.

Court of Errors and Appeals of New Jersey.

June 18, 1917.

(Syllabus by the Court.)

Appeal from Circuit Court, Essex County.

Action by Rudolph Gross against the Commercial Casualty Insurance Company of Newark, N. J. Judgment for plaintiff, and defendant appeals. Affirmed.

William E. Holmwood, of Newark, and Edward L. Katzenbach, of Trenton, for appellant. Jacob L. Newman, of Newark, for appellee.

BERGEN, J. The plaintiff brought his action to recover on a policy issued to him by the appellant, assuring him certain payments in case of death or disability resulting from bodily injuries effected solely through accidental means, and it provided that if, by reason of disease or illness contracted during the term of this insurance by the assured, he be totally disabled, and "wholly and continuously prevented from performing any and every kind of business pertaining to his occupation and necessarily confined in the house," he should be paid as for total disability, "and if, immediately following such a period of total disability and confinement in the house, he shall be totally disabled and wholly and continuously prevented from performing any and every kind of business pertaining to his occupation, but is not necessarily confined in the house, three-fourths of said amount per week shall be paid to the assured."

The plaintiff recovered a judgment, from which the defendant has appealed. This appeal presents two questions: First, is the plaintiff entitled to recover? and, second, if entitled to recover, was the jury improperly instructed as to the extent of disability required by the policy?

The first was raised by motions to nonsuit and for a direction in favor of the defendant, and second by an objection noted to the instructions given to the jury. The solution of the first question favorably to the appellant depends upon a determination that the policy was invalidated because of a breach by the plaintiff of certain written warranties made by him, and made a part of the policy which was issued on October 11, 1911, and contained among other warranties the following:

"I have not been disabled nor have I received any medical or surgical attention during the past five years except as follows: In 1911 for eczema, lasting four months."

And:

"My habits of life are correct and temperate; my hearing and vision are not impaired; I am in sound condition mentally and physically, except as herein stated: No exceptions."

This policy expired October 1, 1912, and was renewed each year thereafter, the last being from October 1, 1914, to October 1, 1915. The renewals were manifested by a certificate continuing in force the original policy— "provided the statement in the schedule of warranties in the original contracts are true on this date and that nothing exists on the date hereof to render the hazard of the risk greater than or different than that shown by such schedule."

The testimony permits an inference: That previous to the issuing of the last certificate the plaintiff had called upon a physician because, as plaintiff testified, he "got so easily tired in my feet. I went down there to consult because he once treated me before, about a few years ago. * * * I went down there, and he looked me over. He did not say anything. He said, 'You go home and take a little more care and take a little rest and rub your feet with alcohol.' Q. He did not tell you anything was the matter with you? A. No. Q. And you had no trouble after that until this last illness? A. Yes."

This he testified happened six months or a year prior to the last renewal. As this branch of the case rests upon the motions to nonsuit and for direction of a verdict, the foregoing testimony must be taken as true, and the question is whether this testimony conclusively established the fact that when the last renewal certificate was issued the plaintiff's warranty that he had "not been disabled nor have I received medical or surgical attention during the past five years" was untrue, and therefore a breach of the warranty within the meaning of the policy, and also whether his condition made "the hazard of the risk different or greater than that shown by such schedule." The plaintiff's business required him to be on his feet most of the time, and finding that he tired easily, he went to the physician and represented his condition, but was not...