Westphall v. Metropolitan Life Insurance

SHAW, J.

Plaintiffs appeal from a judgment entered against them upon a verdict rendered as directed by the court in favor of the defendant, and from an order of court denying their motion for a new trial.

The action was instituted upon a policy of life insurance wherein plaintiff Ella R. Westphall was named as beneficiary. The policy, dated April 22, 1913, was issued by defendant to Ira E. Westphall, who died on August 4, 1913. The written application by him made therefor is dated April 15, 1913.

A copy of the policy and application therefor was attached to and made a part of the complaint. The policy recites that it is issued “in consideration of the application for this policy, copy of which application is attached hereto and made a part hereof,” and the payment of the stipulated premiums. The application is divided into parts, designated part A and part B. Part A, as stated therein, was “to be signed by the applicant for insurance and proposed beneficiary.” This contained printed questions, the answers to which, if true as made in writing by the applicant, conveyed to the company information sought by such interrogatories. It also contained a provision as follows: “It is agreed that inasmuch as only the officers at the Home Office of the company in the city of New York have authority to determine whether or not a policy shall issue upon this application, and as they act on the written statements, answers, and agreements herein made, no statements, promises, or information made or given by or to the person soliciting or taking this application for a policy, or by or to any other person, shall be binding on the company, or in any manner affect its rights, unless such statements, promises, or information be reduced to writing and presented to the officers of the company at the Home Office. ’ ’

“And it is further declared and agreed that the foregoing statements and answers, and also the statements and answers on the next page hereof in answer to the medical examiner, are correct, and wholly true, and that they shall form the basis of the contract of insurance if one be issued”; attached to which was the signature of Ira E. Westphall, the applicant.

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“The statements and answers on the next page,” mentioned in the last paragraph quoted, refer to those contained in part B of the application. This, as appears therefrom, was addressed to “The Metropolitan Life Insurance Company,” and contained the following: “To induce the Metropolitan Life Insurance Cogipany to issue policy, and as consideration therefor, I agree, on behalf of myself and of any other person who shall have or claim interest in any policy issued under this application, as follows: Wherever nothing is written in the following paragraphs it is agreed that the declaration is true without exception. ’ ’ This part, of the application was in the form of statements made by the applicant and divided into numbered paragraphs and each paragraph ending with the word “except,” in the blank space following which, as indicated, it was intended that the applicant, by writing, should insert such explanation, limitation, or qualification of the printed statement as might accord with the true facts. Statement No. 2, so contained in part B, was as follows: “I have never had any of the following complaints or diseases: Apoplexy . . . fits or convulsions . . . (naming a number of well-recognized diseases) varicose veins, except.” No explanation, qualification, or other statement was inserted in the blank space following the word “except”; so that it appeared therefrom that said statement constituted a positive representation that the applicant had never had or suffered from any of the complaints or diseases designated in said paragraph. Paragraph 3 of said statement was as follows: “I am now in sound health. . . . nor have I any physical or mental defect or infirmity of any kind, except.” Here again, by reason of no qualification of the statement being inserted, it constitutes a positive assertion as to a fact. At the end of part B, and just before the signature of the applicant attached thereto, is the following: “I hereby declare that the application to the Metropolitan Life Insurance Company for an insurance on my life was signed by me, and that I renew and confirm my agreements therein as to the answers given to the medical examiner, and I hereby declare that said answers are correctly recorded hereon.” It thus appears that, while part A contained questions to be answered by the applicant, part B was a statement and representation with reference to what the company regarded as material facts which, as well as upon the answers given, formed the basis of the proposed contract, and in reliance upon the in