Urback v. Metro. Life Ins. Co.

• Decision Date: 09 January 1942
• Docket Number: No. 17.,17.
• Parties: URBACK v. METROPOLITAN LIFE INS. CO.
• Court: New Jersey Supreme Court

23 A.2d 568

127 N.J.L. 585

URBACK

v. METROPOLITAN LIFE INS. CO.

No. 17.

Court of Errors and Appeals of New Jersey.

Jan. 9, 1942.

Syllabus by the Court.

When a life insurance company is asked to underwrite a death risk, and the usual preliminary questionnaire is to be answered by the applicant, the prior medical history of such applicant and true statement thereof are matters essentially material to the risk involved, and the materiality of such matters is not the subject of a finding by the jury.

PERSKIE, Justice, and RAFFERTY, Judge, dissenting.

Appeal from Circuit Court, Essex County.

Action on a life insurance policy by Sadie Urback against the Metropolitan Life Insurance Company. From an adverse judgment, defendant appeals.

Judgment reversed, and venire de novo awarded.

See, also, 127 N.J.Eq. 253, 12 A.2d 677.

George W. C. McCarter, of Newark, for appellant.

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

PARKER, Justice.

This is an action by the beneficiary of a life insurance policy. The plaintiff is the widow of the insured. There were six separate defenses set up in the answer, each of which is based on some allegedly "false and fraudulent" answer to a question propounded by the insurer on the usual application form, and in view of which answers the policy was issued. Certain of the answers appear plainly to have been false, particularly as to "illnesses and ailments" not mentioned in them. The trial court left it to the jury to find whether or not these answers were fraudulent, and no special complaint is now made on that score. But the court went farther, and instructed the jury that it was for them to find whether the answers were material to the risk. The language of the charge on this point was as follows: "So, you must find that the misrepresentation, if fraudulent, was material, that is, material to the risk, material for the defendant insurance company to know in passing on and determining if it will accept the risk." A little later in the charge the court went on to discuss the answer to the fifth question, which read as follows: "Have you ever been an inmate of, or have you ever received treatment in any asylum, hospital, sanitarium, or cure? If yes, give date, duration, name of ailment, and name of institution." The answer given to this stated that in 1909 (the policy was issued May 1, 1936) the deceased had been in Beth Israel Hospital for appendectomy, and did not state what was clearly proved in the case, that a little over two years prior to the policy, in January, 1934, he had been to a hospital for diagnosis because of fainting spells; and in answer to a question whether he had ever had a surgical operation, he entirely omitted the fact that in August, 1934, his tonsils had been removed. The question as to whether all these matters were material to the risk was left entirely to the jury, as has been said. Exceptions were duly taken and assigned as grounds of appeal and have been argued.

In our opinion there was error in the instruction of the court leaving to the jury the question of materiality of certain representations which quite...