Chase v. Sunset Mutual Life Assn.

SLOANE, P. J.

This is an appeal by the defendant Sunset Mutual Life Association from a judgment for $1400, with interest and costs, on a mutual benefit life insurance policy. The insurance was taken out by one Henry Niel Chase, upon an application in writing made by him on the fifth day of April, 1927. The policy bears date of April 11, 1927. The insured had an attack of illness on April 7th, and on account of a recurring attack on April 11th was taken to a hospital on the 14th of that month, and underwent an operation on April 16th, and died on April 22, 1927.

In the application for insurance of April 5th, upon which the defendant company issued the policy sued on, the applicant certified that he was in good health, and as far as he knew he had no disease or other condition that would prevent him from obtaining life insurance, and that he understood that the falsity of any statement as to his physical condition would bar the right to recovery on his policy. His wife, the plaintiff in this action, was named as beneficiary in the policy issued.

The issue on which the case was tried is raised by the allegation in defendant's answer that the policy was executed in reliance on decedent’s representations as to the state of his health contained in his application for insurance, and that he therein “fraudulently stated that he was in good health, knowing at the time that this statement was false, with the intent to deceive and defraud the defendant; that the said Henry Niel Chase was not at the time in good health, but was suffering, and had suffered prior to his statement made on the 5th day of April, Í927, for a considerable length of time; that said suffering was caused by a diseased gall bladder, from which he died on the 22nd day of April, 1927; that the deceased fraudulently stated in

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said application that he had not consulted a doctor during the last 3 years prior to the signing of said application for membership, and that said statement was false, and that said Henry Niel Chase intended to deceive, and did deceive the defendant by said statement. ’ ’

Before the conclusion of the trial the defendant, by leave of court, filed an amendment to its answer, in which it is alleged that “after the making of the application by the insured, to wit, after April 5, 1927, and before the execution of said policy, i. e., before April 11, 1927, the insured became seriously ill, that he was sick; that he had an attack; that he was not in good health, that he was thereafter physically able to communicate the fact of such ill health to the defendant insurer before the date of the execution of said policy of life insurance; that the said insured knew that the insurer would not have issued the said policy herein sued upon, if the facts were brought to the attention of said insurer; that the insured fraudulently concealed the said facts from the defendant insurer for the purpose of defrauding this defendant; that if such facts as to the insured’s illness during the said period were made known to this defendant that this defendant would not have issued said policy of life insurance.”