
    OCEANA A. BANCROFT, Appellant v. THE HOME BENEFIT ASSOCIATION OF NEW YORK, Respondent.
    
      Insurance Policies—Clauses constituting a warranty against a hurt or wound—Hurts or wounds constituting a breach of the warranty—Breach ' of warranty avoids the Policy.
    
    In the application of the assured for a certificate of membership in defendant’s association (in effect for a policy of insurance) for the benefit of his wife (the plaintiff) it was agreed by the assured that “Any untrue or fraudulent statements made by me, or to any medical examiner for said association, or any concealment of facts by me shall forfeit and cancel all rights to any benefit under the above named contract.”—To the question put to him by the medical examiner for the association “ Have you received any wound, hurt or serious injury ? ” the assured answered “No.”—Upon this application and the examiner’s report the certificate, of membership sued on was issued. The certificate provided “ In consideration of the representations and agreements made in the application herefor, and which is a part of this contract, and of each of the statements made therein, which, whether written by his own hand or not, every person accepting or acquiring any interest in this contract hereby adopts as his own, admits to be material, and warrants to be full and true, and to be the only statements upon which this contract is made,” etc.
    
      Held, that the above clauses warranted the truth of the above answers to the medical examiner, and that any substantial deviation from its truth constituted a breach of the warrantee, and rendered the certficate of membership (i. e. policy) void.
    On the trial it appeared that about a year prior to the making of the application, the assured received a blow from a foil on the throat; a few seconds afterwards he raised a little blood; the force of the blow produced a wound or hurt on the inside of the windpipe; shortly after he was confined to his bed for the greater part of three days, during which time he was attended by a physician.
    
      Held sufficient evidence to sustain a finding that the assured had, before the making of the application, received a serious bodily injury; that such injury so found to have been received, constituted a breach of the warranty, and that the plaintiff could not recover.
    Before Freedman and Ingraham, JJ.
    
      Decided February 14, 1887.
    Appeal from judgment entered on a trial before the court without a jury.
    The facts sufficiently appear in the opinion.
    
      JE. L. Fancher, attorney, and of counsel for appellant, argued:—
    I. It was a year and some months after the foil episode that Bancroft made the application. During all those fourteen months no effects whatever were felt, and the foil episode had doubtless passed from his memory. The effects had passed away after a few days. Surely he was justified in stating, on the 28th April, 1885, that “to the best of his knowledge and belief ” he had not received any hurt, wound or serious bodily injury. And would not any jury so decide on the facts of this case ? If the effects are temporary, the injury is not serious. That every trivial hurt or wound must be remembered and described, on such an application, is unreasonable and absurd. It is abundantly decided (see cases below) that a reasonable, and not a strict literal construction, must be given to the words, even though they are made by the policy a warranty.
    II. The court, in similar cases, avoids a construction which is not reasonable, and avoids the strict literal sense of the words, as a warranty, holding that a strict warranty is not intended, where the trouble asserted has been cured, and did not affect the duration of life. Among other decisions to this effect see the following authorities: Insurance Co. v. Foley, 105 U. 3. 350; Ins. Co. v. Wilkinson, 13 Wallace, 222; Moreton v. American Life Insurance Co., 111 U. S. 135; Conn. Life Ins. Co. v. Union Trust Co., 112 U. S., 250; Alton Life Ins. Co. v. France, 94 U. S. 561; Fitch v. American Pop. Life Ins. Co., 59 N. Y. 557; Cushman v. U. S. Life Ins. Co., 70 N. Y. 72; Hybie v. The Guardian Mutual Life Ins. Co., 53 N. Y. 603.
    
      Hal Bell, attorney and Henry W. Johnson oí counsel for respondent, argued.—
    I. The certificate sued upon declares that the representations and agreements contained in the application for the certificate are a part of the contract between the parties. Hence the certificate and application are to be read together as one instrument: Worsly v. Wood, 6 T. R. 710; Mut. B. Life Ins. Co. v. Miller, 2 Ins. L. J. 109 ; Jennings v. Chenango Co. Mut. Ins. Co., 5 Denio, 75; Patch v. Phoenix M. L. Ins. Co., 44 Vt. 481; Braunstein v. Accidental Death Ins. Co., 2 Bigelow, 610; Douglas v. Knick’r Life Ins. Co., 83 N. Y. 503; Bliss on Life Insurance, § 58.
    II. Thus read, there is no room for doubt that the contract sued upon contains an absolute and unqualified warranty of the truth of the answers given to the questions contained in the application, and that the contract cannot be enforced if those answers were in any respect untrue: Ætna Life Ins. Co. v. France, 1 Otto, 510; Jeffries v. Life Ins. Co., 22 Wall. 47; Foote v. Ætna Life Ins. Co., 61 N. Y. 571; Eddington v. The Same, 77 Id. 564; The Same v. The Same, 100 Id. 586.
    III. That the warranty contained in the application and certificates was broken, was distinctly found by the trial judge, and cannot be disputed upon the evidence.
   By the Court.—Ingraham., J.

The certificate ‘of membership in defendant’s association sued on, which is in effect a policy of insurance, was issued on the application of the assured; in which application it was agreed by said assured that “ any untrue or fraudulent statement made by me, or to any medical examiner for said association, or any concealment of facts by me, shall forfeit and cancel all rights to any benefit under the above named contract,” which agreement was signed by the assured; and the said certificate of membership issued upon the application, provides that “ in consideration of the representations and agreements made in the application herefor, and which is a part of this contract, and of each of the statements made therein which, whether written by his own hand or not, every person accepting or acquiring any interest in this contract hereby adopts as his own, and admits to be material, and warrants to be full and true and to be the only statements upon which this contract is made, etc.”

It is clear that, by the application and policy, the assured warranted the truth of the several answers, and that compliance with such warranty was a condition of the. validity of the contract of insurance, and that any substantial deviation from the truth in the answers given was material to the risk, and constituted a breach of the terms of the contract, rendering the policy based upon such answers, void.

This principle is well settled in this state, and has been lately re-affirmed by the Court of Appeals in the case of Dwight v. Germania Life Ins. Co., reported in 103 N. Y. 341.

In the application for the insurance, the assured was asked: Have you received any wound, hurt or serious bodily injury ? ” To which he answered, “ No.” The court found as facts: Fifth; prior to the making and delivery of the said application, the said John S. Bancroft had received a wound. Sixth; that, prior to the making and delivery of the said application, the said John S. Bancroft had received a hurt. Seventh; that, prior to the making and delivery of the said application, the said John S. Bancroft had received a serious bodily injury.” And the only question presented is whether there was evidence to sustain these findings.

It appeared, and the court found, that, a little over a year prior to the making of the application, the said Bancroft, while engaged in fencing, received a blow from a foil on the throat in the neighborhod of, or upon, the Adam’s apple; that, in a few seconds thereafter, he raised a little blood; that the force of said blow produced an abrasion, wound or hurt on the inside of the windpipe, and that, shortly thereafter, the said John S. Bancroft was confined to his bed during the whole, or the greater part, of three days, and, during that time, was attended by a physician.

A consideration of the evidence satisfies us that there was sufficient to sustain these findings. The injury received was followed by the spitting of blood, and by it the assured was confined to his bed for two or three days. Upon no reasonable interpretation of the language used could it be held that this was not. a wound or a hurt.

It is not necessary for us to hold that, if the court on the evidence had found for the plaintiff, there would not be evidence to sustain such a finding.

There is sufficient evidence to sustain the finding made.

As was said by the Court of Appeals, in Dwight v. Germania Life Ins. Co. (supra): “Parties to an insurance contract have the right to insert such lawful stipulations and conditions therein as they may mutually agree upon, or which they may consider necessary and proper to protect their interests, and which when made' must be construed and enforced, like all other contracts, according to the express understanding and intent of the parties making them, If the insurance policy, in plain and unambiguous language, makes the observance of an apparently immaterial requirement a eondition of a valid contract, neither courts nor juries have the right to disregard it, or construct, by implication or otherwise, a new contract in the place of that deliberately made by the parties.”

Applying this rule to the facts as found by the court, the defendant is entitled to judgment. Judgment must therefore be affirmed with costs.

Freedman, J., concurred.  