
    Annie L. Hackett, Appellant, v. The Supreme Council, Catholic Benevolent Legion, Respondent.
    
      Application for life insurance —presumption that it was read hy the applicant — false answer as to his rejection hy another lodge of the same insurer.
    
    An applicant for a policy of life insurance who signs a medical examination blank, in which his answers to the questions propounded in the blank have been written by the physician conducting the examination, is presumed to have read the blank before he signed it.
    A breach by the insured of a warranty, to the effect .that he had never before applied for membership in the insurer or any other beneficial society or life insurance company and been rejected, is not immaterial because the unsuccessful application, on which the alleged breach was predicated, had been made to another lodge of the insurer, in the absence of evidence that the insurer kept a record of rejections, and that the officers of the insurer had actual knowledge of the contents of the record or of the rejection.
    Appeal by the plaintiff, Annie L. Hackett, from a judgment of the Supreme Court in favor, of. the' defendant, entered in the office •of the clerk of the county of Kings on the 24th day of May, 1899, upon the verdict' of a jury, and also from an order entered in said clerk’s office- on the 29th day of June/ 1899, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Raphael J. Moses, for the appellant.
    
      John G. McGuire, for the respondent.
   Willard Bartlett, J.:

This suit was brought by the mother of John J. Hackett, deceased, to recover $3,000, upon a certificate of insurance issued by the Supreme Council, Catholic Benevolent Legion, whereby that corporation agreed to pay out of its benefit fund to the plaintiff a sum- of money not exceeding $3,000, upon the death of the insured person, on condition that he was' at the time in good standing as a member of the legion. The certificate bears date March 16/ 1896, and expressly provides that it is issued to John Jerry Hackett, a member of St. John the Baptist Council No. 8, Catholic Benevolent Legion, located at Brooklyn, N. Y., “ upon condition that the statements are true which are contained in his application for membership and medical examination filed in the office of the supreme secretary and made a part of this contract.” The application for membership and the medical examination appear to have been made out and signed by John J. Hackett in February, 1896. Among the answers in the medical examination which the applicant warranted to be true are the following :

“ Have you ever before applied for membership in the Catholic Benevolent Legion ? No. Or any other beneficial society-or life insurance company ? Yes. Were you ever rejected ? No.”

On the trial of the action it was proved that J'ohn J. Hackett had applied for membership in the Catholic Benevolent Legion in 1895 and had been rejected because the medical examiner was of the opinion that a deceased sister of the applicant had died of phthisis, and, therefore, that the brother was not eligible for membership in the legion until he should attain the age of thirty years. At that time he was less than twenty years óf age.

The court treated the case as one of false representation rather than breach of warranty, and it went to the jury upon the question whether the insured had obtained the certificate by means of any material misrepresentations contained in his application or medical! examination. The evidence of the alleged misrepresentation in respect to the non-rejection of any previous application for insurance was furnished by the production of the application made in 1895, and by the express statement of the applicant above his own signature, in the medical examination of 1896, to the effect that he had not previously applied for membership or been rejected.

To qualify and overcome the force of this statement, the plaintiff testified that she was present at the medical examination of 1896,. which appears to have been conducted by Dr. Louis D. B. Kulin,. by %hom the answers of the applicant were written down; that she heard the medical examiner ask her son whether ■ he had ever been refused insurance in any other insurance company, and that her son said no; but that she was certain her son did not answer the question whether he had ever made any previous application to the Catholic ■ Legion. “ He made answer, to other questions,” the witness said, “ but to that one he made no answer.”

The medical examiner was not called to contradictvthis testimony given by the mother ;■ but the defense rested upon the written medi-c d examination itself, bearing the signature of the insured in 1896, as sufficient proof of the representation, and upon the previous ■application and rejection in 1895 as sufficient proof of its falsity.

The learned counsel for the appellant lays much stress upon this ■omission of the defendant to put the medical examiner upon the ■stand, but we do not see how it can fairly be regarded as fatal to the verdict. Even if the applicant did not answer the question as to any former application and rejection when put to him orally, the presumption is" that he read the medical examination before he -appended his signature to that document, and there the declaration ■that he had not been rejected distinctly appeared. The defendant might rely upon the presumption, if it saw fit so to do, without calling the doctor, who, possibly, might not have any definite recollection of what had occurred in this particular case, especially if he •examined many applicants for insurance every year.

It is also suggested that the misrepresentation as to any previous rejection by the Catholic Benevolent Legion, though- material if believed and acted upon, was immaterial in this case because it could not mislead the officers of the defendant, who wquld be acquainted with the truth by the contents of their own record. There would be more force in this if both applications had been made to the same 'Council. The first, however, was made to Madison Council, while the certificate was subsequently obtained from St. John the Baptist •council. It is true that the medical examinations were both transmitted to the medical examiner in chief, and that officer, if he kept ■a record of previous rejections which he had approved, w'ould have known that the statement of the applicant in the second medical examination, to the effect that he had never been rejected by the Catholic Benevolent Legion, was untrue. There is no evidence, ¡however, -that such a record was kept, nor is there any proof that ■any of the officers of the defendant concerned in insuring John J. Haclcett had any actual knowledge that a previous application of his had been rejected. We think it was necessary for the plaintiff to ■show that they knew that fact, in order to relieve herself from the effect of the false statement of the insured, which, if made and made understandingly, as the jury must have thought it was, could only have been designed to deceive the officers of the .council from which the benefit certificate was finally obtained, and thus induce the ¡medical examiner of that council to accept a risk which the medical 'examiner of another council had condemned the year before, for reasons which were still- as good as they had been then.

The case was left to the jury under a charge to which only one exception was taken in behalf of the plaintiff. That relates to the instruction that even if a record of rejections were kept such fact would not estop the defendant from taking advantage of false statements that were made by the insured. .As already suggested, the mere existence of such a record would not be enough to make the misrepresentation immaterial unless the contents of the record, or the fact of the previous rejection, and the consequent falsity of the Applicant’s present answer, were actually known to those officers" or agents of the defendant from whom the insurance was obtained.

There was no error on the trial. The proof • leaves little doubt that the defendant’s officers were really misled. The judgment should be affirmed.

All concurred.

Judgment and order affirmed, with costs.  