MacKinnon v. Fid. & Cas. Co.

• Decision Date: 17 March 1905
• Court: New Jersey Supreme Court
• Parties: MacKINNON v. FIDELITY & CASUALTY CO.

60 A. 180

72 N.J.L. 29

MacKINNON

v. FIDELITY & CASUALTY CO.

Supreme Court of New Jersey.

March 17, 1905.

(Syllabus by the Court.)

Action by Minnie D. MacKinnon against the Fidelity & Casualty Company. Demurrer to plea sustained.

Argued November term, 1904, before GUMMERE, C. J., and GARRISON and GARRETSON, JJ.

Louis G. Morten, for plaintiff. W. D. Edwards, for defendant.

GARRISON, J. This is a demurrer to a plea. The declaration averred that the defendant had insured the husband of the plaintiff against "disability or death resulting directly from bodily injuries sustained through accidental means" by a certain contract or policy of insurance made with him, a copy of which was annexed to the declaration, and expressly referred to therein and made a part thereof. The policy so annexed included a schedule of warranties consisting of a series of questions and answers, one of which is as follows:

"K. No application ever made by me for insurance has been declined, and no accident or health policy issued to me has been canceled or renewal refused, except as herein stated. No."

The plea to which a demurrer has been filed recites the precise language of this section, and identifies it as section K., and then goes on to aver that such statement was false and untrue, because the insured had made an application for a policy of life insurance which was declined.

The primary question is whether the word "Insurance" in the first clause of this warranty means life insurance, the plaintiff contending that it refers only to insurance of the sort for which the insured was applying, viz., accident or health insurance. The word "insurauce" in this clause evidently did not mean any insurance, for in that case it would cover not only life and accident insurauce, but also fire insurance and insurance against tornadoes, burglars, liability to employés, as well as credit, live stock, plate glass, and other similar insurances, which admittedly were not intended. The word "insurance" not being used in its universal sense, the clause requires construction to ascertain its fair meaning and intent. After an original diversity of opinion as to the proper construction of this clause, we have concluded that the insurance there spoken of is life insurance. This conclusion, which was reached by a comparative examination of the other clauses and sections of the same schedule, leaves untouched the fact that the interrogation covers two transactions so coupled as to admit of, if not to require, a single answer to the proposition propounded as an entirety. Such answer was in point of fact made by the insured and accepted by the insurer, who now exhibits it by the plea under consideration. But a negation of this proposition as an entirety is strictly a denial of it in its entirety, and does not...