On appeal from a judgment of the Supreme Court.
For the plaintiff-respondent, David T. Wilentz.
For the defendant-appellant, Clifford I. Voorhees.
The opinion of the court was delivered by
WELLS, J. This is defendant's appeal from a judgment of the Supreme Court in a case tried at the Middlesex Circuit before a jury wherein a verdict was rendered in favor of the plaintiff for $11,600.
The suit was upon a policy of life insurance issued by the defendant upon the life of Michael Hahn, payable to his wife, the plaintiff, as beneficiary.
The written application for the policy was made October 31st, 1931, the policy was dated November 25th, 1931. Michael Hahn died August 2d, 1932.
The application contained numerous questions and answers. Part A of the application contained general information, was signed by the applicant and witnessed by Joseph
H. Gati, the agent of the defendant. Part B of the application consisted of questions to be asked by the medical examiner and supposed to be answered by the applicant. It was signed by the applicant and witnessed by the medical examiner.
Both Part A and Part B contained untruthful answers.
Part A of the application contained a question addressed to the insured and answers thereto, inter alia, as follows:
"Q. 13. Have you any other application or negotiation for life, accident, or health insurance now pending or contemplated? A. No."
The undisputed testimony was that this answer was false, and that on October 20th, 1931 (ten days before he signed the application for the policy herein), the insured applied to the Prudential Insurance Company for an insurance policy for $10,000 on his life, which was issued November 4th, 1931. Appended to Part A was this statement; "It is understood and agreed; That the foregoing statements and answers are correct and wholly true, and, together with the answers to questions on Part B hereof, they shall form the basis of the contract of insurance if one be issued."
The policy itself states that it was issued in consideration of the application thereof, "a copy of which application is attached hereto and made a part hereof;" and further provides as required by our Insurance law, Pamph. L. 1907, p. 133, § 1 (4), that "all statements made by the insured, shall, in the absence of fraud, be deemed representations and not warranties."
Part B of the application contained a question as to whether the insured had ever received or applied for any disability or compensation benefits or any benefit under a policy of accident, health or fraternal insurance, to which the answer set down was "No." It was undenied that the insured was a member of the Woodmen of the World and that in ...