Civil action. On final hearing.
[2 NJSuper Page 508] The plaintiff in the prosecution of this action seeks a rescission and cancellation of a policy of life insurance in the sum of $5,000, issued by the plaintiff to the defendant Seymore Sinett on January 23, 1947, in favor of his wife as beneficiary. Intentional fraud and conscious misrepresentation by the assured in procuring the policy is not alleged. It is asserted that the assured made an untruthful representation of material facts in his application for the policy. Vide, Metropolitan Life Insurance Co. v. Tarnowski , 130 N.J. Eq. 1, 20 A.2d 421. I am aware that it is now the well sustained rule that in cases of this nature in equity it is not obligatory upon the plaintiff to prove that the applicant in the preparation of his application for the policy was motivated by a deliberate intent to deceive. Commercial Casualty Insurance Co. v. Southern
Surety Co. , 100 N.J. Eq. 92, 135 A. 511, affirmed 101 N.J. Eq. 738, 138 A. 919. The degree of materiality of the misstatement of fact in the application has been defined in Kerpchak v. John Hancock Mutual Life Insurance Co. , 97 N.J. Law 196, 198, 117 A. 836.
In the present case the assured is charged with having made an untruthful answer to the following interrogatory embodied in the conventional application form: "Have you ever had any ailment or disease of (c) the Stomach or Intestines, Liver, Kidneys or Genito-Urinary Organs?" The answer was "No." The accusation is that prior to his application he had suffered from gastric and peptic ulcers of the stomach.
My conclusion derived from a consideration of all of the evidence is that the plaintiff has been unable to prove with any persuasive degree of certitude that the answer given by the assured was untrue.
There were occasions distinctly isolated in point of time on which the assured experienced discomfiture from some irritation in his stomach. Not unlike many who suffer an ache and pain, he visited a physician. I infer from the evidence that the physician so interviewed in each instance suspected that the abdominal distress might well be due to a peptic ulcer, but assuredly the diagnosis was provisional and not positive. A died was prescribed and the disturbance rapidly disappeared.
The recurrence of a like indisposition in October 1944 and again in March 1946 induced the assured to follow the recommendations of the physician and submit to X-rays of his stomach. Such was done on October 24, 1944, and on March 23, 1946, and the roentgenologist on each occasion reported that there was no evidence whatever of an ulcer, no secondary signs of such, and no organic pathology. The negative proof of any pathology of the stomach remains uncontroverted.
Consequently there is more reason to believe that the temporary condition of the assured was attributable to some dietary indiscretion rather than to an ailment or disease within the proper signification of those terms.
The assured was also asked: "(g) Have you consulted a physician for any ailment or disease not included in your answers?"
His response was "No." The truthfulness of that reply has not been impugned.
And then, he was requested to divulge: "13. What clinics, hospitals, physicians, healers or other practitioners, if any, not named above, have you consulted or been treated by, within the past five years? If none, so state." Parenthetically, one will note the leading ...