
    EMMA K. RITZLER, Plaintiff and Respondent, v. THE WORLD MUTUAL LIFE INSURANCE COMPANY, Defendants and Appellants.
    LIFE INSURANCE.
    Policy.—Application.
    
      Effect of maldng the latter a part of the contract, and hy the terms of the policy, contracting that the statements in the application are true, and if not true, the policy void, &c.
    
    If a person, contracting for life insurance make tlie payment of the policy conditional upon the absolute truth of his answers to questions in the application as to whether he has been afflicted, at any time, by any one of a long catalogue of diseases, he must be bound by it, although it may he oftentimes impossible for the applicant to answer correctly.
    The courts cannot set aside the conditions of such a contract, although the insured may have inadvertently erred—By failure of memory or otherwise—in an answer to any one of the numerous questions in the application. Foot v. The Etna Life Ins. Co., 61 N. Y, 577.
    Before Curtis, Ch. J., Sanford and Freedman, JJ.
    
      Decided May 8, 1877.
    This is an appeal from a judgment entered on a verdict in favor of the plaintiff, and also from an order denying defendant’s motion for a new trial, made on the minutes of the court.
    This action is brought on a policy of life insurance, for $1,500, issued by the defendants on the life of plaintiff’s husband, John A. Ritzier.
    The policy, upon its face, purports to have been issued “in consideration of the representations, declarations áhd covenants contained in the application therefor, to which reference is here made, as a part of this contract,” and upon the express condition and agreement, ‘‘ that the statements and declarations made in the application therefor, and on the faith of which it is issued, are in all respects true, without the suppression of any facts relating to the health or circumstances of the insured, affecting the interests of the company; ” and that, “in case of the infringement of any of the foregoing conditions, . . . this policy shall become null, void and of no effect.”
    The application, refered to in the policy,, was subscribed by the plaintiff’s husband, in her name and on her behalf, as well as by himself, individually. It contains an agreement that “this declaration and the above proposal shall be the basis of the contract” between the parties, and “that, if any fraudulent or untrue 
      allegation be contained therein, or in the proposal,” the policy shall be void.
    The application contains certain “ questions to be answered by the person whose life is proposed to be insured,—and which form the basis of the contract.”
    Among them are the following, with a negative answer appended to each.
    “ Qu. 12. Has the party ever had any of the following diseases : ”—(Here follows a numerous list, including, among others, “rheumatism”)—“or any serious disease?” Ans. “Ho.”
    If the party has had one or more of these diseases, please state particularly, which, when, how severe, and whether fully recovered, and answer, no, to all the rest. Ans. “Ho.”
    “Qu. 13. Has the party had inflammatory rheumatism, if so, when and how often?” Ans. “Ho.”
    Upon the trial, it appeared in evidence that, in or near the year 1860, Ritzier was sick, for four or five weeks, with acute, febrile or inflammatory rheumatism, or rheumatism of the joints, and was attended during that period, for that disease, by Dr. Bernhardt Segnitz, then his family physician.
    The court submitted to the jury the question whether the deceased ever had rheumatism, as testified to by Dr. Segnitz; but charged, in substance, that if, under the circumstances of the case, the jury was satisfied that Ritzier did not remember having had rheumatism, when he signed the application,—and therein denied having had it,—if the fadt that he had had it, was not then in his mind,—and he gave the answer truthfully and in good faith, the plaintiff would be entitled to their verdict.
    He further charged, in substance, that if the jury found that Ritzier had had rheumatism, the burden of proof was upon the plaintiff to satisfy them that he made the answer in good faith, and that unless it was proved that he made the answer in good faith, they must find for the defendant.
    He further charged, in substance, that no misunderstanding of the question, on Ritzier’s part, would avoid the defense, “unless you are satisfied that he did not recollect the fact of having the disease.”
    The question whether or not he did recollect, having had it, was submitted, with the intimation that the plaintiff was entitled to recover, even if, through forgetfulness, the question was answered untruly.
    The court refused to charge :—
    (1.) That “ the truth of the statements in the application, which were in express terms made the basis of the policy, was a condition precedent to the validity of the policy.”
    (2.) That, if the insured, John A. Ritzier, had had an attack of rheumatism prior to his application for insurance, the plaintiff cannot recover.
    (3.) That where the application provides that its statements shall be the basis of the contract, that any untrue or fraudulent answers shah avoid the policy, and the policy makes the application part and parcel of itself, and further, that if, in any respect, untrue or fraudulent, it shall avoid the policy, that the two papers must be construed as one.
    (4.) That, whether or not the representations were material, the parties have made them so, and whether innocently made or not, if untrue, they avoid the policy.
    Exception was duly taken by the defendants to each and all of the several rulings above set forth.
    The jury rendered a verdict in favor of the plaintiff for the amount claimed.
    The defendant’s motion on the minutes, for a new trial, was thereupon denied.
    Judgment was entered upon the verdict, and appeals were taken both from the judgment and from the order denying the motion.
    
      
      W. P. Prentice, for appellant.
    
      J. H. V. Arnold, for respondent.
   By the Court.— Sanford, J.

J.— By the express terms of the policy of life insurance upon which this action is brought, the “application” therefor constitutes an essential element in the contract between the parties. The application provides that the declarations and proposals therein expressed shall be the basis of the contract; and the policy recites the declarations, representations and covenants of the application, as the consideration for the promises which it contains. The covenants in the application are, by the express language of the policy, made binding upon the parties, and the policy is, on its face, issued and accepted upon condition that the statements and declarations of the application are, in all ’ respects, true. The two papers are concurrent in date and tenor : they relate to the same subject matter; each has express reference to the other; both are essential to a complete understanding of the purpose and intent which the parties had in view. Under these circumstances, the two instruments are to be regarded as one, and the same construction is to be given to their various provisions, as if they had been all embraced within the scope of a single document subscribed by both the parties. But there is no substantial discrepancy in the language of the two .instruments. By the terms of each, the validity of the contract of insurance is made to depend expressly upon the substantial truth of certain statements. The application provides that, if any fraudulent or untrue allegation be contained therein, the policy shall be void.

The policy specifies, as one of the conditions upon which it is made and accepted, that the statements and declarations of the application are, in all respects, true. It also provides, that an infringement of any of its conditions shall render it null, void and of no effect. Such being the agreement between the parties, there would seem to be no room for discussion as to the materiality of the statements which form the basis of the contract, or as to whether or not they were made in good faith, or with intent to deceive. By making certain statements the basis of their contract, and declaring that its. validity shall depend upon the truth thereof, the parties stipulate that, for the purposes of the contract, such statements shall be material and that their truth shall be an essential prerequisite to liability thereon, irrespective of the motives or intentions of the party insured. When the validity of the contract of insurance depends, by its terms, upon the truth of a statement, it is wholly unimportant whether the statement is material to the risk or not; and the question whether th'e party making it erred innocently or otherwise, is not to be considered. This position was, in effect, conceded upon the argument; but it was urged that the peculiar language of this policy, with respect to the suppression of material facts affecting the interests of the company, operated to qualify and restrict the provision by which the validity of the contract was made conditional upon the truth of the express statements contained in the application. It is true that the policy provides not only that the positive statements and representations of the insured shall be, in all respects true,—but also that there shall be no suppression of facts relating to the health or circumstances of the. assured and affecting the interests of the company. The condition is, that such statements are in all respects true, without the suppression of material facts not specifically inquired about. In order to vitiate the policy, a sivppressio veri in regard to a matter not specifically inquired about, must be material and affect the risk ; but it by no means follows that a suggestio falsi, involved in a positive declaration made in response to a specific inquiry, must in like manner be of like character, in order to produce the like result. The contract is otherwise. The two provisions are distinct. That with respect to a suppression is intended to be cumulative rather than restrictive. It was inserted ex abundanti cautela, and in order to provide for a case, not previously reached or covered. There might well be a sup-' pression of facts affecting the risk, notwithstanding the literal truth of every response to the several inquiries addressed to the applicant. It was, therefore, important to provide that a suppression of material facts, not specifically inquired about, should work the same results as express statements nob in all respects true. Hence the condition is to be interpreted not only as forbidding all falsehood, but as exacting the disclosure of truth, in so far as such disclosure may be material.

The supplemental clause enlarges, rather than impairs, the obligations intended to be imposed, and probes the conscience of the applicant by enjoining an honest frankness as well as by prohibiting mendacity.

It was urged that no case could be found in which a policy containing this qualification had been construed as importing a warranty of the truth of representations therein contained irrespective of the question of their materiality and good faith. But, it was said in Jeffries v. Life Ins. Co. (22 Wall. 47), that where the stipulation is not expressed to be made as to important or material statements only, the statements need not come up to the degree of warranties; that they need not be representations even, if the idea of an affirmation having any technical character is conveyed by that term. The whole question depends upon the agreement of the parties. And where they have distinctly agreed, their contracts must be performed and enforced. In the case last cited, the language of the policy was precisely identical with that now under consideration, and while it was observed that many cases might be found which held that false answers to inquiries not relating to the risk would not necessarily avoid the policy, unless they influenced the mind of the' company, and that them materiality was a question for the jury, yet the court said, “ we know of no respectable authority which so holds, where it' is expressly covenanted as a condition of liability 'that the statements and declarations made in the application are true, and when the truth of such statements forms the basis of the contract.” The same principle was recognized and afiirmed in Fitch v. American Popular Life Ins. Co. (59 N. Y. 566), although in that case the policy was construed to import no more than an assurance that the 'statements in • question were made honestly and in good faith, and were believed by the applicant to be correct and true. Stress was laid upon peculiar language tending to show that the true construction of the papers was that the policy should be void only in case of intentional and fraudulent misrepresentation or suppression of facts by the applicant, and particularly upon the terms of a printed “notice to policy holders,” attached to the policy, which stated in terms that “ payment would he contested only in case of fraud.” The more recent case of Foot v. Ætna Life Ins. Co. (61 N. Y. 571), holds that statements, which in terms are declared to be “ part and parcel of a policy,” are warranties, and must be substantially true, of the policy will be void. That where the validity .of the policy is made to depend upon the truth, as well as upon the honesty and good faith of such statements, either falsity or fraud will vitiate it, and that it is not essential to this result that both these elements should concur; or, in case of an untrue statement, that it should be knowingly or intentionally, and mala fide, made.

This authoritative exposition shows that the charge of the judge, and Ms refusals to charge as requested, were erroneous, and require the reversal of the judgment and order appealed from.

They are reversed accordingly, and a new trial is granted, with costs to appellants, to abide the event.

Freedman, J., concurred.

Curtis, Ch. J.

If persons make the payments of policies upon their lives conditioned on the correctness of their answers as to whether they have at any time had one or more of a long catalogue of diseases, and which it is oftentimes impossible in the nature of things for any one to answer correctly, they must be bound by it. The courts cannot set aside the conditions of this class of contracts when persons choose inconsiderately or ignorantly to enter into them and agree to make them obligatory.

It is a hardship for parties to pay for years, money from their earnings to secure a provision for their families, which may not only be defeated, but also absorb in a fruitless suit what little else they leave, in case the insurance company outlasts the insured, and can show that he has had at any period of Ms life some illness, the name of which he never knew, or has forgotten, and has thus inadvertently erred in an answer to one of the numerous questions contained in the application.

In the present case, the insured appears to have been an industrious German barber, whose wife insured Ms life for $1,500. The defendant claims that there was a breach of warranty in the contract by Ms having incorrectly stated in the application that he had not had rheumatism. A German physician testified that some thirteen years previous to this application for insurance, he had treated him for rheumatism. TMs testimony is not very satisfactory and is unsustained by any books or memoranda, while it is controverted by his wife, the plaintiff, who had been married to and lived with him for twenty-one years, by his son, and by another witness. It was sufficient, however, to raise a question of fact for the jury, and they could very properly have found upon it in the defendant’s favor.

The judge charged, in substance, that this defense would be avoided, if the jury found that at the time of making the application the insured did not remember that he had had the rheumatism, or made the answer in good faith. This instruction to the jury is at variance with the doctrine recently held in the similar case of Foot v. Ætna Life Ins. Co. (61 N. Y. 577), and as it is, perhaps, possible that the jury may have been misled by this language of the judge, I must concur in the reversal of the judgment and order appealed from, and the granting of a new trial.  