Boehm v. Commercial Alliance Life Insurance

Upon this motion tbe defendant raises but one question, although tliat is raised in several .different ways. The

Also, upon the ground.that, “subsequent to the issuing of the. policy and' entering into this contract with the company, the deceased was attended by a physician throughout the year; .since the making of the contract he had been attended by Dr. Henckell through the summer. That the application for the 'reinstatement amounts to a representation that the conditions are the same as when first issued.” Also, that no cause of action is made out upon the proofs. \

It will be noticed that this does not raise the question that the statements referred to were warranties, but asks the court to hold that there shall be a nonsuit for the reason that the statements were false and were material, and for that reason did not bind the company. It was not suggested by the counsel in that motion that the statements made were or could be called warranties. As a matter of fact, that particular part of the policy which is now relied upon as making them warranties was not referred to, and the attention of the court was not called to it. It is said by the counsel upon this motion that it was not necessary to call the attention of the court to that part of the policy which raises the material question in this case, because it is claimed to constitute a warranty. This claim, if seriously made, cannot for an instant be sustained. It is the duty of the counsel, not only to present to the court all the points upon which they rely, but to call the attention of the court fairly and openly to the facts which are relied upon as establishing their propositions. Any other course would be a failure of that good faith which counsel, by virtue of their office, are expected to exercise towards the court in which they practice. It is not suggested here that there was any bad faith on the part of counsel for the defendant in the trial of this action. It is quite probable that the clause in question was not brought to his notice. It certainly was not in that part of the policy where anybody would have been likely to look for it, and it would not be brought to his notice, or to the notice of any one else, unless attention was particularly called to it. The p'oint that these answers were warranties was not made upon the motion for a nonsuit, neither was it made at the close of the charge. The jury were particularly told by the court that these answers were not made warranties by the company. That they might have

For these reasons the point which is sought to be made here cannot now be raised in this way.

But if the defendant were in a position to raise the question, I am quite clear that he is entirely wrong in his construction of this contract, and that the statements which are sought to be incorporated into this policy were not incorporated into it by the contract between the parties, and, therefore, they are not warranties, but only representations.

The form of the contract is quite remarkable. The policy upon its face does not incorporate the application into it, nor does it say that the application is a part of the policy. It contaius, however, the following clause: That the Commercial Alliance Life Insurance Company, in consideration of, etc., does hereby promise to pay a certain sum to Caroline L. Boehm, or such other person as the insured may from time - to time designate, with the written consent of the company “ upon the provisions, conditions and agreements on the back hereof, which are made a part of this contract.” Turning now to the provisions, conditions and agreements referred to, we find under the head of “Incontestibility” this provision: “Any other breach of warranty or untrue or incomplete statement in the application for this policy, will render this contract null and,void,” etc. Under the head of “Payment of Premiums ” we find this provision : “ The contract of insurance is contained only in this policy and the application therefor (which is part hereof) taken together.” It will be noticed in these provisions that the thing which is a part of the policy is the application, and that any breach of warranty or incomplete or untrue statement which will render the policy null and void, according to the agreement, is that made in the application and not any other one. Beferring to what is produced here as the application, we find that it is contained on the first page of a certain paper. It commences with the words : “ I hereby apply to the Commercial Alliance Life Insurance Companv, of Ne\y York, for a policy,” etc. It is signed by the insured, Ferdinand J. Boehm, and dated on the 4th day of March, 1892. It contains, above his signature, this statement: “That the entire contract is contained in said policy and in this application.” This paper is form L, as appears in the abstract. The next paper, which is on the back of the application, and is entitled form B in the medical service, is called by the company, “ Declarations to be made to the medical examiner,” etc. It is signed by the insured, as is the application, and he states, above his signature, that he is the person

There is no doubt about the rule that no statement made to an insurance company as the basis of a contract of insurance can be regarded as a warranty, unless the paper in which it is made is by necessary inference made a part of the contract. Jefferson Ins. Co. v. Cotheal, 7 Wend. 72 ; Owens v. Holland Purchase Ins. Co., 56 N. Y. 565 . It was held in that case, that unless the paper in which the statements were made was referred to and adopted as a part of the contract, such statements did not become warranties, but were simply representations.

It is also thoroughly settled that all the provisions of a policy of insurance, which are sought to be relied upon to produce a forfeiture, are to be construed strictly against the Company. The rule is so thoroughly settled that no citation of authority is necessary to establish it. It is founded upon a wise policy, because the insurance companies make their own contracts ; they insert in them just what provisions and conditions they see fit, and for that reason it is' assumed that they have made their contracts as strongly in their own favor as it is possible for them to do. As is said by Judge Peckham : In these cases a strict construction must be insisted upon, and the contract resulting in a forfeiture cannot be extended beyond the strict and literal meaning of the words used. In cases where the meaning is not entirely plain, and where it is capable of two constructions, one involving a forfeiture and the other being fair and reasonable and supporting the obligation of the policy against the insurer, that construction is preferred by the courts which does not involve the forfeiture, not only because it is not so harsh, but also because if the language is doubtful it is that employed by the insurer, and should be taken most strongly against him. Holly v. Metropolitan Life Ins. Co., 105 N. Y. 437 , 441, 442; 7 St. Rep. 204 . It is said by Judge Cowen, in the case of Jefferson Ins. Co. v. Cotheal, 7 Wend. 72 , that the doctrine of warranty in the law of insurance is one of great rigor, and for that reason it is never created by construction, and it must appear in express terms or must necessarily result from the nature of the contract.

The first thing £o be noticed in this case is, that the application is not made a part of the policy by anything contained in the policy itself, strictly speaking. It only can be said to be incorporated in the policy as part of it by holding that because the provisions, conditions and agreements on the back of it are made a part of the policy, that the things which in those conditions,

These questions which are sought to be put into the application are required to be written by the medical examiner. There are nearly forty different answers, some of which are necessarily not within the personal knowledge of the applicant, many of which, as every applicant for insurance knows, it is utterly impossible to answer with entire accuracy. Yet, if they are made a part of this policy, they are all warranties, and every one of them becomes as material to the contract as the most important piece of information which is given to the company, and the falsity of any one, even the least important, will enable the company to avoid the contract. Le Roy v. Market Fire Ins. Co., 39 N. Y. 90 ; Dwight v. Germania Life Ins. Co., 103 Id. 341; 3 St. Rep. 115 . For this reason it has been held that all statements made in the paper upon which the contract is sought by the insured are to be construed as representations rather than warranties in all cases where such construction is possible. Daniels v. Hudson River Fire Ins. Co., 12 Cush. 416 . If the company desired these declarations to the medical examiner

There is no question, therefore, that the application which by this agreement is made a part of the contract is that paper, and that paper only, which is called ,an application and which is signed as such by the insured. It is not claimed tl^at any of the answers in the application are false, The false answers are those which are made in the declarations to the medial examiner, and, as we have seen, are no part of the application. It is quite true that in the application the insured is made to say that the answers to be made to the medical examiner shall be made the basis to the contract and he warrants the same to be fully complete and true. That provision, however, does not make them part of the application, nor does it give them any further weight than they would have had without it. If the insured had stipulated that any falsity of those statements would avoid the contract a different question might perhaps be presented, but the only untrue or incomplete statements which will avoid the contract are those made in the application.

The question, the false answers of which are relied upon as a defense, are as follows : “Have you ever been seriously ill ? ” To which the answer is, “No.” “Name and residence of your usual medical attendant? ” To which the answer was, “Has none.” “Have you consulted any other physician; if so, when and for what?-” To which the answer was “No,”

These statements were made on the áth da}^ of March, 1892. It appeared by the testimony, and was not disputed, that at fourv different times before the fourth of March the insured was at the office of Dr. Henckell, who examined him and prescribed for him. These four dates were’ on the fourth of February, thirteenth of February, twenty-fourth of February and the second of March. It does not appear accurately either with what disease Boehm suffered, or what the doctor told him about it. It did appear, however, that during all the time previous to the application for insurance the man was at work driving his hack every day, and that at the times he visited the doctor before the application was made he drove to the doctor’s office, upon his hack, or went there on foot. It did not appear anywhere in the testimony that he had, or ever had had, the attendance of any physician except Dr. Henckell, who prescribed for him on the four occasions mentioned above. No other physician had ever been called by him or consulted bv him, so far as appears. Upon this state of the teetimonv the question was submitted to the jury whether, the defendant had

It appeared in the case that in the month of November, 1892, this policy was permitted to lapse, and that an application was made on the 18th of .November, 1892, for a reinstatement. In this application it was stated that Boehm was then in sound physical and mental condition; that he had not been sick, and the parties agreed that that application should form part of the contract of insurance, together with the original application. It may be conceded, for the purpose of this motion, that from the time the policy was reinstated the application for reinstatement became a part of it, and that a statement that Boehm had not been sick from the time of the first making of the policy down to the eighteenth day of November was a warranty. That being so, the question then arose whether there was a breach of that warranty. The testimony showed that after the policy had been granted, and on the 15th and 21st of August, 1892, Boehm was at the office of Dr. Henckell, who then prescribed for him. What was the nature of the indisposition from which he suffered, if any, does not appear. Dr. Henckell made this statement: “I did not at any time, before this 26th of November, 1892, attend him at his house; always at my office, 116 Sophia street; during this time he was ill.” Precisely what time was referred to by that answer does not appear. It was claimed upon the motion for a nonsuit that the application for a reinstatement amounted to a representation that the conditions were the same as when the policy was first issued. The precise meaning of this claim is not perceived, and it is quite doubtful just what point was intended to be made by it. It was not suggested to the court at that time that the statement for the application of reinstatement was a warranty, nor that the statements made in that application were in themselves false. No such point .was made, nor was any such reason suggested, arising out of the application for reinstatement, why a verdict should be ordered. The court submitted to the jury the question whether that statement of Boehm, in the application for a reinstatement, that he had not been sick, was false, and also the question whether, if false, it was a representation as to a material fact. To this act of the court no exception was

It is quite true that the case states that the defendant’s counsel objected to the submission to the jury of the question of the materiality of the representations which are mentioned in the charge of the court, but if that objection was intended for an ex-ceptipn to the charge of the court in any respect, it was entirely too broad. As we have seen, the materiality of the representations contained in the declarations to the medical examiner was properly submitted to the jury. This objection included the materiality of those representations, as well as the representations stated in the application for reinstatement. It is well settled that a single exception to several distinct propositions in the charge is of no avail if any of them is good. Haggart v. Morgan, 5 N. Y. 422 . Within this rule the sweeping objection of counsel to submission to the jury of the. materiality of any of the representations is of no avail, although the submission of one of them might not have been proper.

There was certainly no error in that portion of the charge of the court which submitted to the jury the question whether Boehm had been sick before the 18th of November. It was undisputed upon the testimony that up to that time and for some time after-wards he had been continually attending to his business, which was that of a hackman, and none of .his neighbors knew or had any information that he was in any way out of health. The most that could be said was, that while he was engaged in his daily occupation he consulted Dr. Henckell either for a cold or for an indigestion, or for something of that kind. There is not one particle of evidence in this case that his illness, whatever it was, was anything more than an ordinary cold or a slight indigestion, which might have been the effect of a cold. Whether such an ailment of that kind was an illness within the meaning of this statement was clearly a question for the jury. It surely cannot be that a man who takes out a policy of life insurance must, at his peril, recollect accurately every occasion upon which he has suffered from a cold or a slight attack of indigestion, and it is equally clear that the question whether such an ailment can be said to make a man sick is to be decided by the jury, and cannot be passed upon as a question of law by the court. Indeed, there is not one particle of evidence in this case which would warrant the defendant in interposing this defense.'

But with regard to the submission to the jury of the question whether he had been sick before the 18th day of November, it is sufficient to say that no exception was taken and no question based upon that ruling is raised in this case.

The motiog for a new trial must be denied, with costs.

Motion denied, with costs.