On appeal from the Supreme Court.
For the plaintiff-respondent, D. Trueman Stackhouse and Ervin E. Field.
For the defendant-appellant, Starr, Summerill & Lloyd (Alfred E. Driscoll, of counsel).
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment entered in the Supreme Court on the verdict of a jury in the Gloucester Circuit in favor of the plaintiff and against the defendant.
The defendant had issued four industrial policies on the life of the decedent, Albert Baurle, two of them dated
January 2d, 1933, the third dated May 15th, 1933, and the fourth dated August 28th 1933. There was also a fifth policy issued November 6th, 1933.
The insured died December 9th, 1933, and defendant paid the first two policies but refused to pay the other three, whereupon plaintiff brought suit thereon and recovered on the third and fourth policies. A directed verdict was entered for defendant on the fifth.
At the trial two issues were raised by the pleadings. The first was whether the insured had been guilty of material and fraudulent misrepresentations in the applications for these policies, as the result of which the policies were void. The second issue was whether there could be a recovery under the terms and conditions of the policies for the full amount of the insurance, where the policies were issued subject to conditions contained therein limiting the liability of the company, in case of any claim, to the return of the premiums paid if the facts as they existed at the time the policies were issued failed to comply with the conditions specified therein.
The issue of alleged fraud in the applications was abandoned by the defendant, so that we are concerned only with the question as to whether there were breaches of conditions in the policies which would limit the liability of the defendant to the return of the premiums.
Each policy contained a statement that it constituted the entire agreement between the company and the insured and the holder and owner thereof; that its terms could not be changed, or its conditions varied, except by the express agreement of the company evidenced by the signature of its president or secretary, and that agents are not authorized and have no power to make, alter, or discharge contracts, or to waive forfeitures, &c.
Each of the policies provided that it was subject to the conditions named therein each of which was ...