Speakman, J.c.c. (temporarily assigned).
[25 NJSuper Page 256] Plaintiff-insurer seeks the judgment of this court rescinding its
policy of insurance No. 242028, dated June 5, 1951, in which Patricia M. Mazur, the infant daughter of the defendants, is named as the insured. The defendants-beneficiaries counterclaim for the proceeds of said policy payable by reason of Patricia's death on December 10, 1951.
It is necessary to set forth a chronology of events in order to place in proper perspective the determinative factual issues hereinafter discussed. Patricia was born on March 2, 1951. Dr. Anthony Chase delivered her and for a time continued as the physician for formula regulation. As not infrequently happens with newborn infants, difficulties were encountered; she cried excessively, had diarrhea and did not gain weight properly. Consequently, on the recommendation of Dr. Chase, the mother took the child, on March 28, 1951, to Dr. F. W. Lathrop, a pediatrician, for examination and to see if he could devise a formula suited to the needs of the baby. Dr. Lathrop examined the child on March 28, May 4, June 4 and July 2, 1951. While the father drove the mother and child to Dr. Lathrop on most, if not all of these occasions, he never went in the office, never saw the examinations and at no time consulted with, or was consulted by, Dr. Lathrop.
There is no serious dispute as to generally what statements Dr. Lathrop made to Mrs. Mazur. There is, however, a conflict in regard to the dates on which the statements were made. On this subject Mrs. Mazur answered certain interrogatories served on her as follows:
"27. Did you specifically take your child, Patricia M. Mazur to Dr. F. W. Lathrop of Plainfield, N.J. on March 28, 1951, May 4, 1951, June 4, 1951 and July 2, 1951 for consultation or treatment?
28. If the answer to the foregoing interrogatory is affirmative as to any of said dates, state the dates of such consultation and examination, and what Dr. Lathrop told you regarding the physical condition of your child on each such consultation, what treatment he prescribed, and what his prognosis was.
28. On March 28, 1951, Dr. Lathrop stated that the baby had a very nervous stomach, but said she was allergic to cow's milk, and he put her on a protein milk formula. He also stated that she had a slight heart murmur, but nothing to worry about, and declared
that when the baby would be eight or nine years old or over, and if she would ever have an operation, to let the doctors know that she had a slight heart murmur. On May 4, 1951 the baby was progressing well. Dr. Lathrop took her weight, then put her on a goat's milk formula, and expressed the view that he believed the infant would be all right. In June and July of 1951 Dr. Lathrop conducted a routine checkup. The baby was progressing well, had gained weight, and the prognosis was good."
Dr. Lathrop's recollection was that on March 28, 1951 he made a thorough examination and found that the baby had a heart murmur, was malnourished, had flabby muscles, misshapen ears, dry skin, large fontanels of the soft spots and an umbilical hernia. He said that the heart murmur indicated a possible congenital heart condition and at the time he observed the large frontal fontanels they did not impress him as indicating internal hydrocephalus. The direct cause of death, according to the certificate, was given as congenital heart disease and internal hydrocephalus.
Dr. Lathrop's examination on May 4 and June 4 noted no new conditions. Outwardly the child appeared considerably improved; the fontenals had become smaller, the diarrhea condition had improved and the excessive crying had subsided. From a medical point of view, however, the child's weight gain from March 28 to June 4 was not normal and there was no improvement in the heart condition during this period. His recollection of what he told Mrs. Mazur was that on March 28 they discussed the child's difficult feeding history; that on June 4 he told her that she would have difficulty raising her child (he was referring here merely to nutrition), and he believed that on June 4 he told Mrs. Mazur that this baby had a slight heart murmur but he never told her that the child had a congenital heart condition. Furthermore, he did not expect that the child would die of the conditions that he had observed.
From a consideration of all the evidence in this case it is clear that neither Mr. nor Mrs. Mazur knew before issuance of the policy of the existence of the congenital heart condition. There is a conflict regarding the time when ...