Winn v. Provident Life & Trust Co. of Philadelphia

The action is upon a policy of insurance issued by the defendant upon the life of Frank T. Winn, payable to the plaintiff, his wife. The policy was issued the 23d day of January, 1902, and the insured died eight days thereafter. The appellant insists there was no valid issuing of the policy, for the reason the first premium had not been paid, and because the policy had been surrendered before the death of the insured. We think there was a binding credit given for the payment of. the premium, and that there was no legal surrender of the policy.

The verdict of the jury cannot be allowed to stand, however, for the evidence is overwhelming that material statements made by the insured in his application were false. By the terms of the policy the application is made a part of it, and by the application the insured declared that the answers given by him were true, and agreed that, in case any statement was untrue or fraudulent, the policy should become null and void. The answers, therefore, to material questions, became warranties, and, unless they were substantially true, there can be no recovery on the policy. Cushman v. U. S. Life Ins. Co., 63 N. Y. 404 ; Dwight v. Germania Life Ins. Co., 103 N. Y. 341 , 8 N.

In addition, the insured was asked a series of questions as to whether he had had specific diseases, or symptoms of them, amongst which was the inquiry as to whether he had had any affection of the nervous system, or had ever been seriously ill; to all of which he answered “No.” Then followed an inquiry asking him to name his family physician or usual medical attendant, and to also name any other medical attendants whom he may have had within 10 years, or for any serious complaint or protracted illness. To this inquiry he stated that he had had no regular physician, but •named a Dr. Little, giving his residence. The uncontradicted evidence shows that in February, 1896, the insured applied to the Baker-Rose Sanitarium for treatment for alcoholism, and was there treated by Drs. Trigg and Marshall until a complication of diseases became manifest, and treatment was discontinued, and he left the institution. During this time his nervous and physical condition was such that he remained in bed most of the time. In his application for treatment in that institution he stated that he had drank for 14 years and that he was taking 25 drinks daily. The purport of these questions-was to obtain a history of his ailments and the medical services which he had required. It is true that he only partially answered the question with respect to his physicians, and that, therefore, it cannot be said that he made a false statement because he made no statement at all; yet he did state that he had never been seriously ill, or had any affection of the nervous system. It can hardly be said that a man who is so addicted to the liquor habit that he takes 25 drinks daily, and enters an institution for alcoholism, and treatment is discontinued because his physical and nervous condition is such that the treatment cannot be continued, and he is so prostrated that he remains in bed most of the time, has never been seriously ill. The appellant was entitled to know these facts, and the concealment of them was fraudulent.

The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur; SMITH, J., in result.