Metro. Life Ins. Co. v. Lodzinski

• Decision Date: 17 October 1938
• Docket Number: No. 215.,215.
• Citation: 124 N.J.Eq. 357,1 A.2d 859
• Parties: METROPOLITAN LIFE INS. CO. v. LODZINSKI et al.
• Court: New Jersey Supreme Court

1 A.2d 859

124 N.J.Eq. 357

METROPOLITAN LIFE INS. CO.

v. LODZINSKI et al.

No. 215.

Court of Errors and Appeals of New Jersey.

Oct. 17, 1938.

RAPFERTY, Judge, dissenting.

Appeal from Court of Chancery.

Suit by the Metropolitan Life Insurance Company against Magdalena Lodzinski and others to cancel life policies by reason of fraud in the procurement thereof. From a decree of the Court of Chancery, 1 A. 2d 856, striking the bill to cancel one life policy, the complainant appeals.

Decree reversed to the end that Court of Chancery enter decree canceling policy.

McCarter & English and Conover English, all of Newark, for appellant.

Nathan Reibel, of Elizabeth, for respondent Magdalena Lodzinski.

BODINE, Justice.

The complainant filed a bill in chancery to cancel two policies of life insurance by reason of fraud in the procurement thereof. The first policy was issued February 21, 1933, and the second policy was actually issued December 24, 1934. As to the first policy, the learned Vice Chancellor who heard the case dismissed the bill so far as it related to that policy for the reason that the action was not commenced in time. It was held in this court on appeal that the action was timely. Metropolitan Life Ins. Co. v. Lodzinski, 122 N.J.Eq. 404, 194 A. 79, and we also affirmed the Vice Chancellor in his conclusion that the second policy was procured by fraud, and was properly cancelled. The court of Chancery in the retrial of the action, so far as it related to the voidability of the first policy for fraud, struck the bill. It quite properly reviewed the facts and law in the following manner: "Complainant bases its claim for avoidance upon the answers made by the insured to certain questions in Part B (the medical part) of the application. These questions and answers were as follows: 7. (a) When last sick? (No answer) (b) Nature of last sickness (No answer) (c) How long sick? (No answer)' '9. Any physical or mental defect or infirmity? No.' '11. Have you had any surgical operation, serious illness or accident? If yes, give date, duration and name of ailment. No.' '16. Name and address of your usual medical attendant? None.' '17. Have you ever had any of the following complaints or diseases?....Disease of heart.... Rheumatism * * * No.' '18. Have you been attended by a physician during the last five years? If yes, give name of complaints, dates, how long sick, and names of physicians. No.' At the foot of the questions and answers was a certificate which was signed by the insured and which reads as follows: 'I hereby certify that I have read the answers to the questions in Part A hereof and to the questions in Part B hereof, before signing, and that they have been correctly written, as given by me, and that they are full, true and complete, and that there are no exceptions to any such...