
    Eveline Peacock, Executrix of John C. Ryan, deceased, and David C. Peacock, Respondents, v. The New York Life Insurance Co., Appellants, &c.
    When a life policy of insurance is renewed, the policy itself the representations made by the assured when the policy was effected, and the certificate of renewal are to be construed together, and to receive, if possible, a consistent interpretation.
    As the design and object of the parties is to renew a pre-existing contract, the terms employed will not be deemed inconsistent with the conditions of the policy, if they reasonably may be construed in harmony with them.
    Hence, when the policy is renewed, upon the condition that the assured is then in “good health,” the words, “good health,” in the certificate of renewal, will be construed in the same sense as the same words in the representations made by the assured, when the policy was effected, and which were declared to be “the basis of the contract.”
    Ifj therefore,- the health of the assured, when the policy was renewed, was substantially the same as when it was effected, and he was then subject to no other complaints than those he had before specified, the insurers, in the event of his death, will not be excused from the payment of the sum insured, upon the ground that his health, when the insurance was renewed, was not positively and absolutely good.
    When the preliminary proofs, furnished in good faith, to an Insurance Company, are defective, the Company is bound, in common fairness, to suggest the defect, and not hold it in reserve, in order to delay the payment of a loss, or compel a new suit for its recovery.
    (Before Duer, Slosson, and Woodruff, J.J.)
    Heard, April 16;
    decided, June 13, 1857.
    This action comes before the Court, at General Term, on a motion, by the defendants, for a new trial, on questions of law, arising upon exceptions taken at the trial, and there ordered to be heard in the first instance at the General Term, and the entry of judgment to be, in the mean time, suspended; (the plaintiff having recovered a verdict for $5-865 28). The action was brought to recover the sum of $5,000 (with interest), insured by the defendants upon the life of John C. Ryan, deceased.
    The policy is dated the 8th day of March, 1853; premium $160 per annum, payable in advance on the 28th day of February in each year.
    The policy was conditioned, among other things, that if the premium was not paid as prescribed, the defendants were not to be bound by the policy. The assured, before obtaining the policy, made certain declarations in regard to his habits and health. The assured did not pay the premium, which fell due the 28th of February, 1854, when due. The defendants accepted the premium on the 7th of March, 1854, and renewed the policy upon this condition, “ that he (the insured) is no w in good health; proof of which, in case of death, to be furnished the Company.” The assured died 22d May, 1854. May 29th, the defendants were served with affidavits of Caleb Barstow and Henry E. Blossom, stating the death of the assured, and the disease to which they attributed his death.
    The declarations made by the assured when the policy was effected, are stated in the points of the defendants’ counsel, and in the opinion of the Court. When the policy was renewed, the assured stated, in a letter to the President of the defendants’ Company, “that, as to his health, he was better off than when he got the policy.”
    The defence was, that the defendant was not in good health when the policy was renewed, and that no preliminary proofs had been furnished.
    The issues raised by the pleadings were tried before Mr. Justice Bosworth and a jury, in January, 1857.
    A number of witnesses were examined to show the actual state of the health of the assured, when the policy was renewed, and it" was proved that the renewal was on the condition that he was then “in good health.”
    When both parties rested, the defendants moved for a dismissal of the complaint, on the ground that the plaintiff was obliged to produce to the defendants preliminary proof of the health of the assured, at or before the time of claim made for the amount insured by the policy, and that it did not appear that such proof had been furnished.
    
      . i The Judge denied the motion, and the counsel for the defendants excepted.
    : His Honor, the Judge, then charged the jury, and among other things charged: -
    That the policy on which the suit was brought had a condition by which it was forfeited if the premium was not paid on the 28th February; that the premium was not paid on that day ; that the Company had a right to insist on the forfeiture, or to accept the premium and waive it, and that on such conditions as they saw fit.
    That they did in fact receive it, and on the terms expressed in the' receipt of March 7th; on the condition, that John C. Ryan was in good health, &c.. That the only question was, whether he was in good health when the parties finally agreed, the one to leave, and the. other to retain the premium.
    ■ That in determining what was good health, in the understanding of the' parties.to the contract,'.they must''take into view the declaration on which the policy was. made. That declaration showed his' condition as to health, and that "was adopted as the basis of:the contract; so that the question was, whether, at the time of the premium being paid and retained in March, the "said Ryan was in good health, within the meaning of those words, as used by the parties to this contract.
    If you shall find, that on the seventh of March, he was not affected with, any diseases, .other" than those mentioned in the declaration on which the policy was issued, which, in the judgment of those conversant with such subjects, would tend to shorten. human life, or increase the risk, and that those "diseases had not become aggravated so as to -make his condition substantially different fiom what it was when the policy was effected, then he was -in good health, within the meaning of those words, as used by the parties, and the plaintiff was entitled to recover.
    If you shall find-otherwise, your verdict must be for the defendants. „
    The defendants’ counsel, beforé the jury- retired from the Court, excepted to the judge’s charge in the following parti; culars:
    
      1st. To the part in which the judge charged that in deciding what the parties understood by good health, the jury would bear in mind the representations which were made by John 0. Ryan, at the time of making the application for the policy.
    2d. To the part in which the judge charged, that if on the 7th* of March, 1854, John C. Ryan was not affected with any other diseases than those mentioned in Ms application, wMch m the judgment of those conversant with such diseases, tended to shorten human life or mcrease the risk; and if those diseases mentioned in the application of Ryan were not on the 7th day of March, 1854, so aggravated as to make Ms condition substantially different from what it was when the policy was effected, the plamtiffs were entitled to recover.
    The jury retired under the charge of an officer, and returned into Court and rendered their verdict m favor of the plaintiffs, and against the defendants, for the sum -of five thousand eight hundred and sixty-five dollars and twenty-eight cents.
    
      J. Miller, for the defendants,
    m movmg for a new trial, made and argued the following pomts:
    I. No proof, before action brought, of the state of health of the rnsured on the 7th day of March, 1854, (at wMch time the policy was renewed) was made or furnished to the defendants, m compliance with the condition of the renewal. The motion to dismiss the complamt on that ground should have been granted, and the exception to the rating of the Judge in that respect was well taken.
    • It was not 'the case'of a defect of preliminary proof, wMch the defendants should have pomted out, but a failure of the production of any proof whatever, and it does not appear that the defendants did any act wMch amounted to a waiver of such proof.
    II. The charge of the Judge in the particulars , excepted to was erroneous.
    Good health, as used m the condition of the renewal of the 7th of March, 1854, is to be taken positively in the common acceptation of the terms, and not by comparison with the health of the rnsured at any previous period.
    Suppose the insured in his declaration had answered he was m bad health, and the defendants had made the policy notwithstanding, but on the renewal had required as a condition of such renewal, that he was then in good health, could it be maintained that the good health named in the condition of renewal meant bad health, because the defendants had made a policy originally, notwithstanding the insured was in bad health ?
    There is no legal presumption that the defendants would not have originally made the policy in question, unless the insured had been in good health.
    Ho proof or presumption is given, or arises, of any agreement or understanding between the parties defining the meaning of the terms good health, inconsistent with the general meaning of those terms.
    The only legal "inference is, that the defendants were at the time of making the policy willing, notwithstanding the various ailments disclosed in the declaration, to make it.
    But that fact is not evidence of their willingness to renew the policy after forfeiture, on the existence of the same state of facts in regard to health.
    If the defendants had so intended, instead of the condition that the party is now in good health, the condition would have been that the party is now in as good health, as he was at the time of issuing the policy.
    The insured might, or might not, at the time of the renewal, have been cured of the ailments with which he was afflicted at the timé of making the policy; of this he was to judge.
    If by reason of those ailments he was not in good health at the time of making the policy, he might, perhaps, notwithstanding have recovered, if he had kept all the other conditions.
    But having forfeited the policy by non-payment of the premium, the defendants had the right to say, as they did, although we originally insured your life, when you were afflicted with ailments that impaired your health, we now require as a condition of renewal that you are in good health; you may, or not, accept our terms. The insured, by paying the premium and accepting the renewal, agreed to the new terms and conditions, and his legal representatives are bound by them.
    The parties themselves, at the time of the transaction, put a construction upon the terms, good health. The insured in his letter said he would not receive the renewal with the condition annexed, and the defendants thereupon offered to return the premium, if the insured was not willing to take a renewal of the policy upon the condition.
    If the insured understood it to mean such health as he was in at the time of issuing the policy, he would not have remonstrated, for he says in express terms, “ I am now better off than at the time I got your policy.” The insured, therefore, must have understood the terms “ good health,” as used in the condition of the renewal, to be a positive thing, which the defendants required to exist, and not by comparison, as good, or a better state of health than when the policy was issued, and with that understanding he accepted and retained the renewal. The verdict should be set aside and a new trial granted. ”
    
      D. Lord, for the plaintiffs,
    made and argued the following points: l. By the declaration of health on which the policy was effected, the parties made a standard of good health, as to the party to be insured.
    Perfect physical condition is not, in Life Insurance, the standard of good health. (Ross v. Bradshaw, 1 Bl. R. 312; Willis v. Poole, 2 Marshall on Ins. 770; see eases, 2 Park on Ins. 932, and Watson v. Mainwaring, 4 Taunt. R. 763.)
    II. The inquiries made and answered related to causes supposed to be permanent and to bear on the goodness of health, from the susceptibility they are supposed to leave in the subject.
    m. The answers in the declaration of health, show the following facts, as to the health of the insured, adopted as insurable good health in this case, namely:
    Q. 6. That he had not been always sober and temperate; that he had lived freely some years since, but not so now; thinks himself sober and temperate.
    Q. 9. As to serious illness:—That he had had dyspepsia and piles, and one summer, bilious fever.
    Q. 10. That he was subject or predisposed to bleeding piles occasionally, &C-.
    Q. 11. That he had had palpitations and nervousness, but not for many months.
    
      Q..12. That he was subject to temporary colds, but was about as well as he ever was.
    It also appears that-the insured had a personal interview with the defendants about the 16th March, 1854, in which the plaintiff spoke of being ill and irritable.
    IV". Under these facts, the declaration as to good health, both at the time of the insurance and of the renewal, must be deemed satisfied, as "between these parties, by a state of health subject to the drawbacks stated in the declaration of health; otherwise, the defendants, were receiving a premium for which they undertook no risk. -
    Y. The charge óf the Judge left the question of good health' to the jury,' under.no other qualifications than werecontainedin the declaration, of-health.-
    Compare the charge with the declaration of health.- -
    YL The objection on the trial, as to want of proof of health, as preliminary proof was rightly disregarded. .
    ■ 1. The requirement of preliminary'proof in the policy is only of death, not: of the state of health.
    2. The receipt given by the boy who took' the check, never appears to-have been known to the insured, dr his' representative's. '• •
    ; 3.' And, the personal presence, at the office, of the insured was a sufficient exhibit of the subject as to health, under the declaration.
    4. And chiefly, the defendants never called for such certificate, and so waived it, even if it had been strictly preliminary proof required in the policy. (Bumstead v. The Dividend M. Ins. Co., 2 Kernan, 81.)
    5. The Court, even if they could imply a condition in the contract, that such a certificate should be produced, would not imply that it must in all cases be made without a demand or call for it: there is no evidence of any such demand.. '
    Judgment.for the plaintiffs, on the verdict,- should be ordered.
   By the Court. Woodruff, J.

The policy of insurance— the representations which are declared to be the basis of the contract' of insurance, and the certificate of renewal must be construed together. This is only in accordance with the necessary intent of the parties. The very term renewal, or “ renewed,” imports the continued existence of the previous contract, and necessarily refers to its provisions. If there is nothing expressed in the terms of renewal inconsistent with the pre-existing agreement, or the conditions in reference to which it is made, then clearly the act of renewal brings again into full legal effect all the terms of the previous policy, subject to the conditions upon which it was made, and to those conditions only.

To this may be added, that the design and object being to renew a pre-existing policy, the terms employed to effect that object will not be deemed inconsistent with the conditions of such policy, if they may reasonably be construed in harmony with those conditions. The nature of the transaction indicates an intent to continue the former contract without modification, unless the terms of renewal show a different purpose.

And, again, it is a reasonable presumption that the same terms employed by the parties in the original contract are used in precisely the same sense, when they appear in a certificate of the renewal of that contract.

If these observations are well founded, they are pertinent to the appeal under consideration, and would seem decisive in their application to the case. And they are especially appropriate in a case in which the whole object of the so called renewal .was to waive a default in not paying the premium on the precise day it became due, a default arising from inadvertence.

The original policy was made upon an express condition, that if the declaration of the assured made on his application for insurance, should be found in any respect untrue, such policy should be null and void.

The declaration so referred to contained the representations of the assured respecting his health, and after referring to past habits of indulgence, states that he had had no sickness other than dyspepsia, and piles, &c. That he has bleeding piles occasionally ; that he has had palpitations and nervousness, but not for .many months; and in answer to a specific question, “is the said party now in good health? answers, about as well as I ever was, except temporary cold; and it then concludes, that “I am now in good health, and do ordinarily enjoy good health;” and it is then agreed that this declaration and the accompanying proposai “ shall be the basis of the contract” between the assured and the defendants.

The certificate of renewal, which was the only evidence of the renewed undertaking which the defendants furnished to the assured, after acknowledging the receipt of the premium for the second year, contained the words, " renewed on a health certificate.’’

If no further explanation had been sought or given, it would be difficult to say,- that this language imported anything more than that the company had received a certificate, in regard to the health of the assured, which was such that they had consented to renew the policy, and did renew the policy, and waive the default in not paying the premium on the day it became due.

But the matter .did not rest there. The assured, conscious, no doubt, that no actual certificate had been furnished other than his original declaration above referred to, sought an explanation, giving the cause of the.default (imputing it to the neglect of the defendants’ agent), stating that he would give no further explanation as to his health, other than to say that he thought he was better off than when he received the policy. The explanation of the defendants, therefore, is in substantially the terms which formed part of the original declaration which was made “the basis of the contract,” viz. that the condition of renewal was that the party insured is in “ good health.”

Asan min g that by this explanation, or by the terms of the memorandum subscribed by the person who carried the check for the premium to the defendants, that good health thus became a condition of the renewal, we cannot find any ground for saying that it had any other or different meaning in the-renewal than it had when made the very “ basis of the original contract.” These words in the contract of renewal were used in reference to the same subject between the same parties, in view of the continu: anee of the same contract, which was to have the same legal effect and operation in the fixture. There appears no reason why the parties should have used or understood them in any different sense at the one time rather than at the other.

We cannot say that “ good health” has so definite a meaning that it admits of application to only one physical condition. Its ordinary use in the community does not probably import a perfect physical condition once in one hundred times. And when we place ourselves in the precise condition in which the parties themselves were when the renewal was made, with the previous declaration before us, in which good health, as agreed to in the original policy, meant just such health as the original declaration of the assured described, (in very terms “ now in good health,”) we cannot hesitate to say that “ now in good health,” when made a condition of the renewal of the same policy, meant precisely the same thing.

The finding of the jury, then, that the assured was, when the policy was so renewed, in respect of health or disease, in a condition not substantially different from what it was when the policy was effected, seems to us fully to satisfy the condition of the renewal. And these views necessarily dispose of the objection to evidence on that subject, and the exception to the charge of the Judge on the trial.

The remaining "exception rests upon the alleged insufficiency of the preliminary proofs in this particular; that, before suit brought, the plaintiffs did not lay before the defendants proof that, at the time of. such renewal, the assured was in good health, &c.

Although there is room for doubt whether the memorandum signed by Wm. W. Wilson, the person who took to the company the check for the premium, had any operation upon the plaintiffs’ rights whatever, (it not appearing that he had any authority to do anything more than deliver the check,) still we do not think it necessary to rest our decision of this exception upon that ground. The fact nevertheless exists, that the defendants did not insert any condition, (that any such preliminary proof should be furnished), in the receipt they gave to the assured as his voucher for the contract into which the company then entered, and when the president in writing explained the alleged conditions of renewal, he does not intimate that the furnishing of any such preliminary proof is required. And there is nothing whatever to show that the assured, or his representatives, were ever informed of the contents, or even the existence of any such memorandum as that signed by Wilson. The assured had himself been at the defendants’ office, and the state of his health had been the subject of conversation.

Under such circumstances we greatly doubt whether the company had' any right to require such preliminary proof. But if they had, we are quite clear, that when the preliminary proofs were furnished, if they were deemed defective in that particular, the attention of the plaintiffs should have been called to it, or the defect.must be deemed waived; and this.we should hold, even if the preliminary proofs which were furnished were altogether silent upon the subject. On this subject, fair dealing requires reasonable frankness and candor from the insurance company, and so much-the law does and ought to require. The defendants are allowed sixty days after the preliminary proofs are ftirnished, before they can be required to pay.- When, therefore, what are in good faith presented to them as preliminary proofs, are in any respect defective, common fairness requires that such defect be. suggested, and. that it be not held in reserve, to be used afterwards to obtain further delay of payment, or to defeat a suit brought for the money.

But when these preliminary proofs (viz.the affidavit of Messrs. Barstow and Blossom), are read in connection with the fact that the death was only about two months after the renewal, and that the affidavit distinctly refers to the same diseases (as the cause of his death) which are mentioned in the original declaration; (the basis of the policy), and states that he had not been considered dangerously sick more than a week: it is not too much to say, that here is a plain implication that might well be deemed by the company to satisfy their requirement.

Having themselves seen the assured after the renewal was made, in their office, and conversed with him on the subject, and being now furnished with'the affidavit of two persons, that though his disease was of the character from which he suffered even when the policy was originally effected, yet he had-not been considered dangerously ill more than a week, they, had no occasion to require any other or further evidence, that.at the time of the renewal, two months before, he was in the good health contemplated by the policy and its conditions. Although the affidavit is not specific to the point, there "was enough-in it to invite the attention of the company thereto; and if they were not satisfied, they should have suggested the objection.

Judgment must be entered for the plaintiffs upon the verdict.  