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Foster v. Washington National Insurance Co.

Decided: May 20, 1937.

EDWARD FOSTER, PLAINTIFF-RESPONDENT,
v.
WASHINGTON NATIONAL INSURANCE COMPANY, DEFENDANT-APPELLANT



On appeal from a judgment of the District Court of the city of Trenton.

For the appellant, Katzenbach, Gildea & Rudner.

For the respondent, Charles J. Falcey.

Before Justices Trenchard, Bodine and Heher.

Heher

The opinion of the court was delivered by

HEHER, J. Plaintiff sues upon a policy of insurance in the sum of $276, issued by defendant, on November 14th, 1932, upon the life of his first cousin, Anna Lipshutz. The insured died on August 5th, 1935.

The agreed state of the case discloses that "the policy was payable 'to the executor or administrator of the insured, unless payment be made under the provisions'" of the "facility

of payment" clause therein contained, and that it also "contained a request that, in the event of the death of the insured, the proceeds shall be paid" to plaintiff. No claim is asserted on behalf of a personal representative of the deceased. Finding a mis-statement of the age of the insured (plaintiff does not complain of this), the District Court judge, in accordance with the provisions of the policy, awarded judgment for the amount "the premium would have purchased at the correct age." Defendant appeals.

The first insistence of appellant is that "no application for insurance signed by the insured or by any person duly authorized by her was submitted" to it, and the policy was therefore "void and a complete nullity."

Assuming the legal sufficiency of this proposition, if factually well-founded, there was evidence to support a finding that the application for the policy was in fact signed by the insured. It is certified in the state of the case that appellant's "agent called to see Mrs. Lipshutz [the insured] and obtained her application for a policy of insurance." There were appended to the application what purport to be the insured's mark and the signature of the agent as a witness to the making thereof. And the testimony of the deceased's husband sustains an inference that deceased affixed her mark to this instrument.

Secondly, it is urged that the insured, in the application for insurance, "made material misrepresentations" respecting "other insurance carried by her * * *, medical treatment received by her and ailments suffered by her for a period of five years prior to the making" thereof, and the state of her health "on the date of the policy."

But, at the time of the insured's death, the policy had become "incontestable" within the intendment of section 94 of the act relating to insurance (2 Comp. Stat. 1910, p. 2868), as amended by chapter 179 of the laws of 1925 (Pamph. L., p. 436), providing that no policy such as this shall be issued or delivered within this state, unless it shall contain, inter alia, a ...


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