Metro. Life Ins. Co. v. Urback., 217.

• Citation: 46 A.2d 905
• Decision Date: 03 May 1946
• Docket Number: No. 217.,217.
• Parties: METROPOLITAN LIFE INS. CO. v. URBACK.
• Court: New Jersey Supreme Court

46 A.2d 905

METROPOLITAN LIFE INS. CO.

v.URBACK.

No. 217.

Court of Errors and Appeals of New Jersey.

May 3, 1946.

Appeal from Court of Chancery.

Suit by Metropolitan Life Insurance Company against Sadie Urback to avoid a life policy on ground of alleged misrepresentations by insured in his application for the policy. From a decree dismissing the bill of complaint, the complainant appeals.

Affirmed.

See, also, 130 N.J.L. 210, 32 A.2d 337.

PARKER and DONGES, Justices, WELLS and RAFFERTY, Judges,dissenting.

McCarter, Englis & Studer, of Newark (George W. C. McCarter, of Newark, of counsel), for appellant.

Klein & Klein, of Newark (Edward Gaulkin, of Newark, of counsel), for respondent.

On appeal from a decree of the Court of Chancery advised by Vice-Chancellor Bigelow, who filed the following opinion--

‘The bill will be dismissed because the complainant has failed to prove the falsity of the statements on which it relied when it issued the policy on Urback's life. The alleged misrepresentations were made by insured in answer to the following questions contained in the application for insurance:

“5. Have you ever been an inmate of, or have you ever received treatment at an asylum, hospital, sanatorium, or cure? If yes, give dete, duration, name of ailment and name of institution.' A. Yes-appendectomy 1909-Beth Israel Hospital-10 days-Dr. V. Parsonnett, M.D.

‘The answer was true and it was sufficient, even though insured had been in other hospitals on other occasions. Massachusetts Accident Co. v. Stone, 127 N.J.Eq. 97, 11 A.2d 71; Urback v. Metropolitan, 130 N.J.L. 210, 32 A.2d 337.

“11. Have you ver suffered from any ailment or disease of (a) the brain or nervous system? A. No.'

‘There is no evidence that insured had ever had an ailment or disease of the brain. There is some slight evidence of trouble with nervous system but none that insured was aware of it. The question ‘sought to probe the insured's mind, and if he answered truthfully to the full extent of his knowledge there was necessarily no false representation.’ Shapiro v. Metropolitan Life Ins. Co. 114 N.J.Eq. 378, 168 A. 637, 638.

“12(g). Have you consulted a physician for any ailment or disease not included in your above answers? A. No.' “13. What physician or physicians, if any, not named above, have you consulted or been treated by, within the last five years, and for what illness or ailment? If none so state. A. None.'

‘Insured, who drove a truck for a wholesale cleaning and dyeing concern, carried on his usual occupations and continued in apparent good health until immediately before his death November 9, 1937. But occasionally, during 1933-the policy was issued May 1, 1936-he had fainting spells. About the end of 1933, he called upon Dr. Edward M. Finesilver. ‘He wanted a check up, so I sent him over there (to the New York Hospital) for a disgnostic work up.’ He was at the hospital for five days and received numerous tests. The results were all negative except for disclosing a slight nystagmus, that is, a rythmic motion of the eyes which may be an indication of some nervous disease. Dr. Finesilver studied the findings of the New York Hospital and informed insured ‘that they did not find anything the matter...