Opinion
Argued April 19, 1907
Decided May 10, 1907
Alfred C. Cowan for appellant. Charles C. Nadal for respondent.
The policy in question insured Ulysses Gaines against bodily injury, resulting in death, in the sum of $2,000. It stated that the defendant insured him "in consideration of * * * the statements in the schedule hereinafter contained, which statements the insured makes on the acceptance of this policy and warrants to be true." The warranties contained in the schedule of the policy included the statement, in answer to a question as to the "relationship" of this plaintiff, whom the insured had named as the payee, that she was his wife. The assured was killed by a pistol shot, fired by another, and this action by the plaintiff, as the beneficiary named in the policy, was defended upon the ground, among others, that there had been a breach of the warranty; in that she was not the wife of the assured. The result of the trial was that the jury found a verdict in favor of the defendant upon this question of fact and the unanimous affirmance of the judgment thereupon is conclusive.
The question of law, which has survived, is raised by exceptions taken by the plaintiff to the charge of the trial court that she could not recover unless she was, at the time of the insurance, the wife of the person assured. As the question of fact was submitted to the jurors by the trial judge, they were to determine whether there was any agreement between the assured and the plaintiff to enter into the marital relationship and, if there was, whether, the plaintiff's prior marriage to another having been conceded, she was "capable of entering into that relationship;" that is, "had she married the assured in good faith believing her husband to be dead."
The question of the avoidance of the contract, under the clause of the policy relating to injuries intentionally inflicted by another upon the insured, was within the issues of the case; but the instructions to the jurors required them, if they decided for the defendant upon that defense, to return a verdict for the plaintiff for $16.00, the amount of the premium, according to the terms of the policy.
The argument of the appellant, in substance and effect, is that the representation of the assured that Lottie Gaines was his wife was not material and should be considered as matter of description and not of warranty. This was, however, a distinctly expressed warranty, the truth of which was a condition of liability and was of the basis of the contract itself. The effect of making the statement a part of the policy and of warranting it to be true was, in law, to induce the defendant's agreement to insure and the statement became material. It is a general rule, and one which the decisions of this court have asserted, that the materiality of the fact stated by the assured is of no consequence, if the contract be that the matter is as represented, and that unless it prove so, whether from fraud, mistake, negligence or other cause, not proceeding from the insurer, or the intervention of the law, or the act of God, the assured can have no claim. (May on Insurance, sec. 156; Foot v. Ætna Life Ins. Co., 61 N.Y. 571, 577; Cushman v. U.S. Life Ins. Co., 63 ib. 404, 409; Donley v. Glens Falls Life Ins. Co., 184 ib. 107.) The author of the text book cited well observes: "One of the very objects of the warranty is to preclude all controversy about the materiality or immateriality of the statement." The parties to this contract had the right to make any statements of fact material thereto and conditions precedent to any liability thereupon, all things being equal at the time in their attitude to each other, and if they proved false the contract was avoided. The insurer was entitled to know the actual relationship, which the person, for whom the assured desired the benefit of the insurance contract, sustained to him; for it bore upon the risk which it was to assume. The inquiry related to the risk; the statement in the answer was made a warranty to be contained in the policy and, it having been determined that the statement was untrue, the right to recover upon the contract was forfeited.
The motion for a new trial, upon the ground of newly-discovered evidence, was addressed to the discretion of the court below and the order denying it is not reviewable in this court. ( Lawrence v. Ely, 38 N.Y. 42; Smith v. Platt, 96 ib. 635.)
None of the exceptions taken by the appellant presents any error, for which a new trial should be ordered, and I, therefore, advise the affirmance of the judgment appealed from, with costs.
CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHT, WERNER and HISCOCK, JJ., concur; WILLARD BARTLETT J., not sitting.
Judgment affirmed.