Schultz v. Mutual Life Ins.

Shipman, D. J. The question pending at the adjournment ■yesterday was as to the admissibility of evidence to show that after the date of the policy the person whose life was insured, though, previously temperate, formed the habit of intemperance. The clause in the policy referring to this subject is as follows: “This policy is issued and accepted by the assured upon the following express conditions and agreements : * * * If any of the statements and declarations made in the application for this policy, upon the faith of which this policy is issued, shall be found in any respect untrue, then, and in every such case, this policy shall be null and void.” The general character and legal effect of a similar clause in a life policy was considered by the supreme court in Jeffreys v. Life Ins. Co. 22 Wall. 47. The clause in that policy declared that the policy was made by the company upon the express condition and agreement that the statements and declarations made in the application for the policy, and on the faith of which it was issued, were in all respects true. The question before the court was whether the untruth of any statement or declaration made the policy void, or whether the untruth of -such statements only as were material to the risk had such effect. The court says: “This stipulation'is not expressed to be made as to important or material statements 675 only, or to those supposed to be material, but as to all statements. They need not be representations, even, if this term conveys an idea of an affirmation having any technical character. Statements and declarations is the expression; what the applicant states, and what the applicant declares. Nothing can be more simple. If ho makes any statement in the application it must be true. If he makes any declaration in the application it must be true. A faithful performance of this agreement is made an express condition to the existence of a liability on the part of the company.” The policy, then,, having been issued upon the express condition that each statement and each declaration shall be found to be true, the only remaining question is whether this language includes declarations in regard to existing alleged facts, or includes also declarations in regard to the future existence of facts which are or are not to take place. I was at first inclined to the opinion that the adjective “untrue” was inapplicable to express the violation of a promise or agreement in regard to the future; that a declaration that a person would not do a thing could not be said to be untrue although the person did subsequently do the act which he had declared he would avoid. A consideration, however, of the stress which is laid by courts in analagous cases upon language in a policy which implies that a future act material to the risk is to be done or omitted, leads me to a different conclusion. In fire policies the application or survey is made generally a part of the policy. The answers to questions which indicate or declare that in future a certain state of things is to take place and exist in the insured property — as, for example, that after a certain time the property will not be used at night, or that a chimney will be built, or the location of a stove will be changed— have frequently been held to be binding upon the assured, and to be a promissory engagement or warranty that the named act would happen or continue to exist; so that in Bilborough v. Ins. Co. 5 Duer, 587, the principle is stated as follows: “Language in a policy which imports that it is intended to do or omit- an act -which materially affects a risk, its extent, or nature, is to be treated as involving an engage 676 ment to do or omit such act.” In this policy such statement and declaration is, in substance, incorporated into and made part of the policy. The language in regard to future pernicious habits is far more than a declaration of intention. It is a positive representation of a future fact, and is not to be regarded as an expression of the expectation or belief of the .-insured. I am, therefore, led to the conclusion that the clause in the policy imports an agreement that future pernicious habits shall not be entered into, and that if the insured thereafter practices any pernicious habit that obviously tends to shorten life, the policy will be thereby avoided. The evidence is admitted.