On appeal from the District Court.
For the appellant, McCarter, English & Egner (Verling C. Enteman, of counsel).
For the respondent, Bernard W. Schnur.
Before Justices Parker and Colie.
The opinion of the court was delivered by
COLIE, J. Metropolitan Life Insurance Company appeals from a judgment of $345 and costs entered against it and in favor of Herman L. Kahn in the First District Court of the City of Newark. The case was tried before the court and a jury.
On February 2d, 1942, the company issued a policy of insurance in the sum of $312 on the life of Pauline Kahn. Herman L. Kahn was named as beneficiary therein. On January 12th, 1943, the insured died, proof of death was filed with the company and a demand made for the amount of the policy which the company refused to pay. The plaintiff, as beneficiary under the policy, then instituted suit alleging the aforementioned facts. The company filed a specification of defenses in which it set forth the policy provision, reading: "if within two years prior to the date of issue of this Policy, the Insured has received institutional, hospital, medical, or surgical treatment or attention, and the Insured or any claimant under the Policy fails to show that the condition occasioning such treatment or attention was not of a serious nature or was not material to the risk, this Policy shall be voidable by the Company either before or after any claim, unless
reference to such institutional, hospital, medical, or surgical treatment or attention is endorsed on this Policy by the company; provided, however, that this Policy shall not be voidable because of absence of endorsement referring to any information which was disclosed in a written application for this Policy.
"If this Policy is voided by the Company, the Company will return the premiums paid."
In the specification of defenses, the company asserted that "within two years prior to the date of issue of the policy, the insured received medical treatment or attention and reference to such medical treatment or attention is not endorsed on the policy and the defendant (the insurance company) has declared the policy void and herewith tenders return of the premiums paid, such treatment not having been disclosed."
The evidence adduced at the trial disclosed that the insured, Pauline Kahn, had, during the period from January, 1940, to January, 1942, submitted herself to the ministrations of one Edward Ponger, the holder of a license to carry on "the practice of chiropractic" in the State of New Jersey. The symptoms for which he treated her were "shortness of breath, obesity, tiredness, menopause and various minor ailments such as colds and things of that sort." The treatments or adjustments, as they were called by Dr. Ponger, numbered in excess of 100 and continued to within one month of the insured's death. On the last date that a treatment or adjustment was rendered, the symptoms of shortness of breath, tiredness and obesity were present. There was also testimony offered by defendant and admitted without objection on behalf of the plaintiff, that the conditions for which the insured received treatment from Dr. Ponger were for a serious condition or ailment.
At the close of the defendant's case, the trial court denied a motion on behalf of the defendant company for the direction of a verdict in its favor and submitted the case to the jury on a charge in which he said, inter alia, "There is no proof of any medical treatment of this woman at any time." The trial court left for the jury to decide the single question of whether the treatments or ...