New York Life Ins. Co. v. Veit

• Decision Date: 24 May 1945
• Citation: 294 N.Y. 222,62 N.E.2d 45
• Parties: NEW YORK LIFE INS. CO. v. VEIT et al.
• Court: New York Court of Appeals Court of Appeals

294 N.Y. 222

62 N.E.2d 45

NEW YORK LIFE INS. CO.

v.VEIT et al.

Court of Appeals of New York.

May 24, 1945.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the New York Life Insurance Company against John O. Veit and others, executors of George E. Bradbrook, deceased, for difference between amount paid deceased under a life policy issued to deceased's wife and amount due under the policy in view of wife's correct age, wherein, after the action was brought against deceased, deceased died, and his executors were made defendants. From a judgment on an order of the Appellate Division of the Supreme Court in the First Judicial Department, 267 App.Div. 695, 48 N.Y.S.2d 309, reversing on questions of fact and of law a judgment of the Supreme Court, New York County, Valente, J., for plaintiff on a verdict rendered at a trial term, and dismissing the complaint, plaintiff appeals.

Judgments reversed and a new trial granted. Earl S. MacArthur, Perlie P. Fallon, and Ferdinand H. Pease, all of New York City, for appellant.

Walter L. Post, Robert M. Post, Le Roy B. Iserman, and Harlan S. Perrigo, all of New York City, for respondents.

DESMOND, Judge.

In 1923 Minnie A. Bradbrook applied to plaintiff for, and there was issued to her by plaintiff, a policy of insurance on her life, payable to her husband, George E. Bradbrook, in the face amount of $25,000. The written application signed by Mrs. Bradbrook stated that she had been born in 1877, and that she was forty-six years old at the time she applied. Her application contained language assuring plaintiff that all the answers therein were true and that she understood that plaintiff would believe them to be true and act upon them. So acting, plaintiff wrote the policy at the premium rate appropriate to the age declared in the application. The policy contained a provision, required by section 155, Insurance Law, to be inserted therein, that: ‘if the age of the insured has been misstated, the amount payable hereunder shall be such as the premium paid would have purchased at the correct age’.

[1-3] Mrs. Bradbrook died on March 29, 1940, and a week later, on receipt of proofs of loss in due form, plaintiff paid to her husband the sum of $25,000 less the amount of a policy loan. In June, 1941, the insurance company company brought this suit, against the husband, alleging in the complaint that Mrs. Bradbrook, when the policy was writtenin 1923 was not 46, as she had then reported, but 62 years old. It is not disputed that, for the premium paid, the amount of insurance available in 1923 to an applicant 62 years old would have been $15,077, instead of $25,000, and it is for the difference between those two amounts that plaintiff sues. (The husband died after suit was commenced, and his executors are now defendants-respondents.) Plaintiff specifically grounded its action on fraud. It alleged fraud, it went forward with evidence directed toward proving fraud, and it was on its request that the Trial Justice, without objection by defendants, submitted to the jury the issue of fact as to whether or not Mrs. Bradbrook had been guilty of fraudulently misstating her age. The jury found for plaintiff. The Appellate Division reversed on the law and facts, the majority of the justices being of the opinion that the evidence, taken most favorably to plaintiff, proved no more than ‘a misstatement of age by the insured’ and that ‘no fraud on her (insured's) part in the procuring of the contract was established.’ We do not so read the record. The jury had before it the testimony of Mrs. Bradbrook's daughter and of her niece that she was actually sixteen years older that she represented herself in the application to be. Besides, plaintiff produced on the trial six different documents signed by Mrs. Bradbrook at various times between 1888 and 1900, in each of which she had sworn that her year of birth was 1861, not 1877. On that showing the jury had the right to say, as it did say by its verdict, that the applicant had given a wrong answer as to her age, that the untruth had been uttered knowingly and with intent that it be relied upon, and that it had in fact been relied upon. The insurer did not, by paying the face amount of the policy before it discovered the deception, waive its right thereafter to sue for a return of the overpayment. See Mutual Life Ins. Co. of New York v. Wager, 27 Barb, 354, 367;National Life Ins. Co. of United States...