In an application for insurance, the applicant agreed that ‘any untrue or fraudulent statement by me, or any concealment of facts by me, shall forfeit and cancel all rights’ under the contract. To the question whether he had ‘received any wound, hurt, or serious bodily injury,’ he answered: ‘No.’ In an action on the policy, it appeared that about a year prior to the application he had, while fencing, received a blow upon his throat by a foil; that in a few seconds thereafter he raised a little blood; that the force of the blow produced an abrasion, wound, or hurt on the inside of the windpipe, and that shortly thereafter he was confined to his bed for the greater part of three days, and during that time was attended by a physician; and that no evil consequences resulted from the injury. Held, that a finding that the injury was ‘serious,’ or that it was a ‘hurt’ or ‘wound,’ within the meaning of the contract, was not warranted by the evidence, and that it was error to dismiss the complaint.
A New York Personal Injury Lawyer said that, plaintiff became a member of defendant’s life department, and received two certificates, by each of which the defendant promised to pay, on proof of his death during the continuance of the certificate, $5,000 to the insured’s wife, the plaintiff, from the benefit fund of the life department. Each certificate contains the following provisions: ‘In consideration of the representations and agreements made in the application here for, and which is a part of this contract, and of each of the statements made therein, which 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.
A New York Wrongful Death Lawyer said that, September 19, 1885, the insured died; and this action was brought to recover the amounts insured by the certificates, and was defended at the trial on the sole ground that the answer to the question above quoted was untrue. The issue was tried before the court without a jury, which found as facts that February 21, 1884, the insured received a ‘wound,’ (fifth finding,) a ‘hurt,’ (sixth finding,) and a ‘serious bodily injury,’ (seventh finding.) The eighth finding of fact described with particularity the wound, hurt, and serious bodily injury found in the fifth, sixth, and seventh findings, and is as follows: ‘Eighth. That prior to the making and delivery of the said application, and on or about the 21st day of February, 1884, the said plaintiff while engaged in fencing, did receive a blow from a foil on the throat, in the neighborhood of or upon the Adam’s-apple; that in a few seconds thereafter he raised a little blood; that said blow produced an extravasation of the submucous membrane, just over the cricoid cartilage, in the posterior part of the throat, almost opposite or behind, but a little below, the Adam’s-apple; that the force of said blow produced an abrasion, wound, or hurt on the inside of the windpipe; that shortly thereafter the said he was confined to his bed the whole or the greater part of three days, and during that time was attended by a physician, and was by him treated with the same treatment that he gave persons who have the complaint of spitting of blood, but I find that the medical treatment was not for the complaint of spitting of blood.’
In the ninth finding, the court found that the insured concealed from the defendant the injury described in the fifth, sixth, seventh, and eighth findings, and, as a conclusion of law, decided that the plaintiff, by reason of the answer given, was not entitled to recover. The plaintiff excepted to the fifth, sixth, seventh, and ninth findings of fact, and to this sentence, contained in the eighth finding: ‘That the force of said blow produced an abrasion, wound, or hurt on the inside of the windpipe,’ and now insists that they are without any evidence tending to sustain them, and are reviewable in this court as questions of law.
To Be Cont…
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