On appeal from a judgment of the District Court of the Third Judicial District of the county of Bergen.
For the appellant, Perkins, Drewen & Nugent (Randolph Perkins and John Drewen, of counsel).
For the respondent, Chandless, Weller & Selser (John E. Selser and Julius E. Kramer, of counsel).
Before Justices Bodine and Heher.
The opinion of the court was delivered by
HEHER, J. Plaintiff, as the appointed beneficiary, sues upon a policy of insurance issued by the defendant corporation upon the life of her mother, Mary Wiworski, who died
on May 1st 1934, a victim of gastric carcinoma. The application for the policy was made in writing on February 21st, 1934; and the defense interposed was that the insured, in answer to inquiries therein contained respecting the state of her health, previous physical infirmities and illnesses, and ministrations of physicians, made "material and fraudulent representations," and, with intent to defraud, failed to disclose "that between the time of the making of said application and the delivery of said policy she suffered with cancer of the stomach, had been attended by one or more physicians for said disease and that she had been admitted to a hospital." The policy was executed on February 28th, 1934; and it is therein declared that this "is the date of [its] issue." But it was not delivered until March 9th, 1934. And the application contained a provision that "the company shall incur no liability" thereunder "until it has been received, approved, and a policy issued and delivered, and the full first premium stipulated in the policy has actually been paid to and accepted by the company during the lifetime of the applicant, in which case such policy shall be deemed to have taken effect as of the date of issue as recited" in the policy. The application was, by express agreement, made a part of the policy. It is said that the statements thus made in the questionnaire constituted "continuing representations" and "must be true at the time the purpose for which they were made is effected (i.e.), the time of delivery of the policy."
The District Court judge, sitting without a jury, rendered judgment for the plaintiff, and defendant's insistence is that, for the reasons to be presently stated, it was entitled to judgment as a matter of law. It is also urged that there was error in permitting "lay witnesses to testify to the apparent good health of the assured prior to the making of the application."
First: There was a lack of definitive evidence that, at the time of the making of the representations contained in the questionnaire, the insured was conscious of ill health. While it is certain that the onset of the fatal disease antedated the application for insurance, it was nevertheless a question of fact whether there had been a manifestation to the insured of
the symptoms of physical infirmity or illness at the time the representations were made. The insurer's physician, who subjected her to a physical examination, found no disqualifying ailment or symptoms of disease. Her appearance indicated good health. And the evidence warrants a finding that she was first stricken during the first week of the ensuing month of March. Of this more hereafter.
Nor does it conclusively appear that she had been attended by a physician shortly before the making of the application. This physician, Dr. Gutowski, was unable to fix definitely the time of his attendance. He had made no record of it. He said his call was "about the middle" of the month of February, 1934, at the home of the assured in the city of Perth Amboy, "about two weeks before" Dr. Urbanski made his examination. But he did not again visit the insured; and how he acquired knowledge of the time of Dr. Urbanski's examination is not made to appear. He found her "sick in bed" and "emaciated." Yet from the twenty-first to the twenty-fifth of that month she was at the home of her daughter in Hackensack, and while there was examined by the insurer's physician, Dr. Farmer, who said she weighed about one hundred and sixty pounds and "looked very healthy." Thus it was fairly inferable from all the facts and circumstances that Dr. Gutowski's attendance on the assured was subsequent to Dr. Urbanski's first ...