Packard v. Metro. Ins. Co.

• Citation: 72 N.H. 1,54 A. 287
• Parties: PACKARD v. METROPOLITAN INS. CO.
• Decision Date: 06 January 1903
• Court: Supreme Court of New Hampshire

54 A. 287

72 N.H. 1

PACKARD

v. METROPOLITAN INS. CO.

Supreme Court of New Hampshire. Merrimack.

Jan. 6, 1903.

Transferred from Superior Court; Peaslee, Judge.

Assumpsit by one Packard against the Metropolitan insurance Company. Verdict for defendant, and case transferred from the superior court on plaintiff's exceptions. Exceptions overruled.

The insured was the 10 year old son of the plaintiff. The application for the insurance was made by the plaintiff on September 5th, and the boy was examined by the defendant's physician the next day, and was reported by him to be in good health. Thereafter, and before the policy was delivered, the boy fell sick of a disease of the heart from which he died on March 8, 1901. September 16th the plaintiff took him to a physician, who found that he had a disease of the heart, but did not inform the plaintiff of his discovery; and she had no knowledge that the boy had such disease. The disease was undiscoverable except upon examination by a physician, is not infrequent with children, and is frequently outgrown. At the date of the policy and the time of its delivery, there was nothing in the actions and appearance of the boy to indicate to ordinary observation that he had anything more than a temporary ailment. The boy's father died of consumption, and that fact was waived by the defendant in the policy. The attending physician testified that the boy died of heart disease and consumption, and that the consumption might have been an inheritance from the father, and the cause of the heart disease. The policy contained the following: "Provided, however, that no obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive, and in sound health." The application contained a like provision. The policy also contained the following: "This policy is issued upon an application which omits the warranty usually contained in applications, and contains the entire agreement between the company and the insured and the holder and the owner hereof."

Martin & Howe, for plaintiff.

Brown, Jones & Warren, for defendant.

CHASE, J. The parties introduced into their contract a provision "that no obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive, and in sound health." That they had authority to limit the contract in this way cannot be doubted. Dwight v. Insurance Co., 103 N. Y. 341, 8 N. E. 654, 57 Am. Rep. 729. The question to be considered arises upon this provision, not upon a representation or warranty made by the plaintiff in the application for insurance. There was no warranty in the application, and it does not appear that any representation was made therein concerning the health of the assured. The entire contract is contained in the policy. The question, then, is, what did the parties intend by this provision? It must be presumed that they intended what the words used by them ordinarily signify in common speech. This leaves little room for interpretation, since there is but slight ambiguity in the terms of the provision. No obligation was assumed by the defendant unless the insured was alive, and in sound health, on the day of the date of the policy. The defendant's promise was not absolute, but conditional. The existence of life and sound health in the insured was a condition precedent to the promise of insurance. But what was meant by the words "sound health"? Evidently, not perfect health. "We are all born with the seeds of mortality in us." No definition can be given to these words that will apply in all cases. A mere temporary indisposition or ailment wquld not ordinarily be regarded as rendering the health unsound, within the meaning of these words when used in an insurance contract. Speaking generally, they mean the absence of any vice in the constitution, and of any disease of a serious nature that have a direct tendency to shorten life; the absence of a condition of health that is commonly regarded as disease, in contradistinction to a temporary ailment or indisposition. Cushman v. Insurance Co., 70 N. Y. 72, 77; Brown v. Insurance Co., 65 Mich. 306, 32 N. W. 610, S Am. St. Rep. 894; Metropolitan ins....