On appeal from the Passaic County Circuit Court.
For the appellant, Paul Rittenberg.
For the respondent, McCarter & English (Conover English, of counsel).
The opinion of the court was delivered by
TRENCHARD, J. The trial judge directed a verdict for the defendant below and the plaintiff appeals from the consequent judgment.
The suit was on a policy of life insurance and the defense was fraudulent misrepresentation. The statement made by the insured to the medical examiner in her application was dated May 19th, 1927. The policy was dated May 25th, 1927. The insured died August 22d, 1927, of pulmonary tuberculosis.
The fourth defense was that she was asked and had answered as follows:
"5. Have you ever been an inmate of, or have you ever received treatment at an asylum, hospital, sanatorium or cure? If yes, give date, duration, name of ailment and name of institution. No."
The undisputed proofs were that insured had, prior to the date of making said statement in the application, been an inmate of and had received treatment at a hospital or sanatorium, namely, the New Jersey State Sanatorium for Tuberculosis at Glen Gardner, New Jersey.
The sixth defense was that she had answered falsely that she had never suffered from disease of the lungs.
The eighth defense was that she was asked and had answered as follows:
"(g) Have you consulted a physician for any ailment or disease not included in your above answer? No."
The undisputed proofs were that the insured had, prior to the date of making such statement in her application, consulted physicians for an ailment or disease not included in her above answer, namely, for pulmonary tuberculosis.
The ninth defense was that she was asked and had answered as follows:
"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 ...