
    Thomas H. Story, as Executor of William H. Story, Dec’d, App’lt, v. United Life and Accident Insurance Association, Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    
    Insubance (Life)—False bepbesentations.
    A life insurance policy provided that a false representation hy the insured should avoid the policy. ■ The insured stated in his application that his health was then and usually good. At the time the application was signed he stated that he had a pimple on his tongue and had been told by a physician that “it was not serious.” He showed the tongue to defendant’s medical examiner who discovered no indication of disease. For two or three years there had been a peculiar appearance of deceased’s tongue and he had received medical advice in respect to it for nearly a year before the policy was issued. Shortly after it was issued he went to Europe for further medical advice, underwent an operation and died. Held, in an action on the policy that the evidence established a breach of warranty and the court properly directed a non-suit.
    Appeal from a judgment of the circuit court of Kings ■county, dismissing plaintiff’s complaint.
    
      Jerry A. Wernberg (George C. Reynolds, of counsel), for app’lt; Harry Wilbur (S. W. Fullerton, of counsel), for resp’ts.
   Barnard, P. J.

—William H. Story, deceased, on the 9th ■of February, 1886, took out a policy of insurance in defend- . ant’s association. Among the questions put to him by the ■company, as a basis for the issuing of the policy, was one as follows: Are you in good health, and is your health usually ■good? The deceased answered this.question, yes. The policy provides that the answer is a warranty and avoids the •policy if not true. It appears when this application was •signed, the deceased stated that he had a pimple on his tongue, and had been told by a physician that “it was not :serious.” He showed the tongue to the defendant’s medical examiner who discovered no indication of disease. He stated to him where the pimple had been, but added: “it is all gone now.” The examiner looked at the top of the tongue, and made no further examination. For two or three years it appears there had been a peculiar appearance of the deceased’s tongue. At times it exhibited a whitish covering, and at other times a red appearance. The deceased had applied and received medical advice in respect to it, for nearly a year before a policy was issued. The trouble gave him apprehension after the policy was issued, and on the 18th of May, 1886, he sailed for Europe for further advice; ■and while in London in August, 1886, a surgeon cut out his tongue for the disease. He returned home again. On the' 1st of November, 1886, he died. Assuming that it was improper to ask the physicians what they prescribed for the deceased, the evidence clearly establishes that this trouble with the tongue antedated for many months the issuing of the policy. The deceased told his business associate that he was advising with Dr. Rapponer about it, before the date of the policy. He had advised with Dr. Arkinson about it, also before the policy-was issued. He continued to,receive medical aid. between the date of the policy and the voyage to Europe for the same trouble. There is no contradictory proof, and a submission to the jury of the question of disease, would only be proper if different deductions could be drawn from the evidence. In other words, could the jury infer that this disease did not exist on the 9th of February, 1886. It is proven that a cancer may develop and determine within a few weeks, but with the proof that the tongue trouble existed for months before the policy, and continued constantly after, only growing in its danger until surgery had to be called in, there can be but one just inference from the testimony. The deceased was ignorant of any fault in his answer, but he had a disease upon him marked, and considerably advanced toward the end. The nonsuit was, therefore, right, and the judgment should be affirmed, with costs. »

All concur.  