Eastwood, Goldmann and Schettino. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned).
Plaintiffs appeal from a judgment of the Law Division of this court in dismissing their action for the recovery of damages on a life insurance policy issued by defendant on the life of Joseph Locicero, husband and father respectively of plaintiffs. The case was tried, under the pretrial order, by the court without a jury on the issues raised by defendant's equitable counterclaim and plaintiffs' answer to it. All questions pertaining to deliberate and conscious fraud, i.e. , "legal fraud" were eliminated and the court dealt, therefore, with the law of equitable fraud.
Decedent, Joseph Locicero, applied for an insurance policy from defendant on March 1, 1951; the applicant was examined by defendant's doctor on March 9, 1951; the policy was delivered to the insured on April 1, 1951; and the insured died March 16, 1952.
Defendant contends that the insured gave it false and misleading answers to application questions 11(B) and (D) and 13 and also that the insured violated "Part A of the policy that '* * * the insurance applied for shall take
effect * * * only if I have not consulted or been treated by a physician or other practitioner since the date of completion of said Part B.'" With reference to number 11 of Part B of the application the questions and answers in issue are as follows:
"11. Have you ever had or been told that you had, or consulted or been treated by a physician or other practitioner for any of the following:
B. Lung Disease, Asthma, Pleurisy, Blood Spitting, Persistent Cough, Bronchitis or Tuberculosis? No.
D. Pain in the chest, shortness of breath, Coronary Artery Disease or Angina Pectoris? No."
With reference to number 13 of Part B the question and answer are as follows:
"Have you, during the past five years, consulted any physician or other practitioner, or been confined to or treated in any hospital, sanatorium, dispensary, clinic or similar institution not stated in answers to Questions 11 and 12? No." (Italics added.)
We feel that this appeal can be decided by reference to number 13 and therefore limit our opinion to that point.
Although the applicant answered "No" to question 13 with reference to having "consulted" doctors within the five-year period embraced by the question, the record shows that he consulted Dr. Nicholas F. Scielzo in 1945 and 1946 before the beginning of the five-year period, and also consulted with this doctor from October 1950 through March 1951; that the visits from October through March totalled eight to ten and were "At first rather evenly, weekly intervals, and after that sporadically until March"; that the insured's complaints were "The same complaints he had in 1945, pain in the low back and the left leg" and that the "Diagnosis was the same, left sciatica, possible herniated disc." The record also shows that he consulted Dr. Fred J. Crescente in February 1945, May 1945, June 1945, December 13, 17, 18, 20 and 21, 1945; November 14, 1946; April 7, 1947, and
after that date Dr. Crescente gave the insured ten or eleven diathermy treatments and discharged him on May 8, 1947.
Dr. Crescente stated that in February 1945 he treated the insured for an infection in the left nostril; in May 1945 for an enlarged gland in the left inguinal region, the groin; in December 1945 for pain that "radiated down the right thigh and leg simulating a sciatica condition," requiring codeine and salicylates as well as X-ray treatments; in November 1946 for a ...