Levandoski v. Equitable Life Ins. Soc.

• Decision Date: 16 May 1927
• Docket Number: No. 2.,2.
• Citation: 137 A. 414
• Parties: LEVANDOSKI v. EQUITABLE LIFE INS. SOC.
• Court: New Jersey Supreme Court

137 A. 414

LEVANDOSKI

v. EQUITABLE LIFE INS. SOC.

No. 2.

Court of Errors and Appeals of New Jersey.

May 16, 1927.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Elizabeth Levandoski against the Equitable Life Insurance Society. From a judgment for defendant, plaintiff appeals. Affirmed.

Lazarus, Brenner & Vickers, of Bayonne, for appellant.

Collins & Corbin, and Robert J. Bain, all of Jersey City, for respondent.

BLACK, J. The suit in this case was instituted to recover $1,000, the amount of a life insurance policy dated February 14, 1922. The policy was issued on the life of Stanislaw Gurecki payable to his sister, the plaintiff, Elizabeth Levandoski, as beneficiary. Stanislaw Gurecki died June 27, 1922, of pulmonary tuberculosis. The trial resulted in the direction of a verdict for the defendant, on the ground that the undisputed evidence shows that the first premium on the policy was not paid during the good health of the insured. This is the sole ground of appeal alleged as error and the specific point involved for decision. The policy contained this clause:

"I hereby agree that the policy issued hereon shall not take effect until the first premium has been paid during my good health."

As stated, the policy was dated February 14, 1922. Subsequently, it was delivered and the first premium paid. Stanislaw Gurecki died June 27, 1922. On February 20, 1922, the record shows that he had "tubercular infection of the chest"; his death was caused by pulmonary tuberculosis; he died of "pulmonary tuberculosis"; and the "first premium on the policy" was paid at a time when "he was Buffering from pulmonary tuberculosis." The point involved under discussion has been decided, at least inferentially, by the Supreme Court and by this court, in the case of Prahm v. Prudential Ins. Co., 98 N. J. Law, 335, 120 A. 918; affirmed, 99 N. J. Law, 289, 122 A. 752. In that case, it was held the validity of the policy depends, not upon the knowledge of the insured and concealment by him with fraudulent intent, but upon the fact contained in the policy, as a condition precedent to its becoming binding on the company. This precise point was examined and considered by the Supreme Judicial Court of Massachusetts, in the case of Barker v. Metropolitan Life Ins. Co., 188 Mass. 542, 74 N. E. 945; that case held, in order to recover upon a contract, which is made on condition, it is necessary that the condition should have been complied with; so in this case...