Hart v. Prudential Insurance

MOORE, P. J.

Plaintiff commenced this action to recover on an insurance policy issued by defendant. Defendant filed its cross-complaint demanding rescission of the policy on the ground of fraud. Plaintiff recovered the sum of $500, the face amount of the policy. From the judgment defendant appeals.

The court found as facts that on October 10, 1938, one Beaty, a solicitor of defendant, called at plaintiff’s home to solicit her to purchase a policy of insurance on the life of her daughter Laura Jene. Finally yielding to Beaty’s entreaties plaintiff signed an application for a “Twenty Year Payment Life Weekly Premium Industrial Policy.” In answering questions contained in the application, which were propounded to her by Beaty, plaintiff stated that her daughter had suffered from diabetes; that sugar had developed in her urine and that Laura Jene was then receiving medical treatment and that daily sugar tests demonstrated that at that time the daughter’s condition was much improved; that she was gaining and was practically sugar-free; that Laura Jene had survived a case of searletina; had suffered a tonsillectomy and had been treated in a hospital for a tooth extraction. The answers so given by plaintiff were all incorrectly entered in the application by Mr. Beaty as a result of which it was made to appear that Laura Jene’s health Avas good; that she had suffered no illness; that she had not been confined in a hospital and that she had never suffered from diabetes.

Because of plaintiff’s desire hastily to depart from her home, in full reliance upon the statement of Beaty that her answers Avere correctly reported, plaintiff signed the application Avithout ascertaining that the information with respect to Laura Jene’s health was incorrectly entered in the application. The document Avas thereupon forwarded to the home office of defendant. In due course the policy designating plaintiff as beneficiary was received by Beaty who delivered it to plaintiff.

[300]

Contrary to the custom of defendant, a copy of the application was not attached to the policy at the time of its delivery to plaintiff. September 29, 1939, Laura Jene departed this life as a result of a diabetic coma. Proof of death having been filed with defendant, payment of the policy was refused upon the hypothesis that plaintiff had fraudulently misstated her daughter’s physical condition in making the application for the policy. Defendant demands a reversal of the judgment upon two grounds: (1) that recovery cannot be had upon a policy of insurance when issued in reliance upon false representations set forth in the application if the representation was material to the risk; (2) one who applies for insurance is presumed to have knowledge of the false statements contained in the copy of the application attached to the policy and cannot recover thereon, if the true facts have been communicated to the insurer. In support of both propositions defendant must rely solely upon its own assertion that the findings are not supported by the evidence.