On appeal from a judgment of the District Court of the city of Hoboken.
For the appellant, Drewen & Nugent (John Drewen, of counsel).
For the respondent, Nathan Baker.
Before Justices Trenchard, Case and Heher.
The opinion of the court was delivered by
HEHER, J. The judicial action assigned for error is the denial of defendant's motion for a directed verdict in its favor.
The single question mooted by the parties on the argument of the motion was whether the return of the premiums paid is a sine qua non to the exercise of the insurer's reserved right to declare void an industrial life insurance policy for breach of a condition providing that --
"When Policy is Voidable. If (1) within two years prior to the date of issue of this Policy the Insured * * * has been attended by a physician, unless it shall be shown by the Insured or any claimant that no such * * * medical treatment or attention was for a serious disease, injury, physical or mental condition; * * * then, in any such case, this Policy shall * * * be voidable by the Company, unless reference to such * * * medical treatment or attention * * * is endorsed on this Policy by the Company. If this Policy does not take effect, or is voided by the Company, the Company will return the premiums paid."
Here, the trial judge, without objection from plaintiff, ruled there was conclusive evidence of a breach of the cited condition, but he submitted to the jury the question of whether the insurer had made tender of the premiums paid before the institution of the action. Defendant introduced testimony tending to show that it had made tender to plaintiff of $39, conceded to be the full amount of the premiums paid, and that the tender was refused, while plaintiff testified that the sum offered was but $19.
The jury returned a verdict for plaintiff; and defendant appeals from the consequent judgment.
The first question argued is the correctness of the interpretation thus given the contract by the District Court judge. We think he erred.
The contract did not lay down, either expressly or by implication, the insurer's tender of the premiums paid as a prerequisite to the effective exercise of its reserved right to declare the policy void for breach of the cited condition. Under the determination of this court in a case involving a policy provision of like tenor and effect, it is not requisite that notice be given, prior to institution of action upon the policy, of the insurer's election to declare the policy void for breach of condition in such circumstances. This is pleadable as a defense; and, if sustained, the contractual liability of the insurer is limited to the return of the premiums paid. Orsini v. Metropolitan Life Insurance Co., 9 N.J. Mis. R. 407. See, also, Souza v. Metropolitan Life Insurance Co., 270 Mass. 189; 170 N.E. Rep. 62; Horsfield v. ...