Two juries, on sufficient evidence, have answered in the negative the only real question in this case: as to whether the insured knew that she suffered from a heart ailment.
We are told, however, that recovery must be denied under subdivision 4 of section 149 of the Insurance Law, which says that an applicant's misrepresentation that she had no previous medical treatment shall be deemed "a misrepresentation that the applicant has not had the disease [or] ailment * * * for which such treatment or care was given or which was discovered by any licensed medical practitioner as a result of such consultation or observation." I do not believe that the Legislature intended that an applicant who was never informed of her serious ailment must, because she failed to disclose visits to a doctor for what she thought was a minor ailment, be deemed to have falsely represented to the insurer that she never had the serious disease of the existence of which she was unaware. That would impose a drastic penalty for failure to disclose the unknown. There is no indication that the Legislature intended so unreasonable a result. I think subdivision 4 is subject to the necessarily implied condition that the applicant knew what the physician knew. Two juries have said that this applicant did not know, so she should be in the same position as one who *Page 449 fails, for any reason, to mention a visit to a physician for treatment of a mere cold, or similar inconsequential illness.
There have been two trials and four appeals in this suit on a small life insurance policy. As the Appellate Division wrote: "A question of fact was presented for the jury to pass upon" (271 App. Div. 912). The judgment should be affirmed, with costs.
LOUGHRAN, Ch. J., LEWIS and THACHER, JJ., concur with DYE, J.; FULD, J., dissents in opinion in which CONWAY, J., concurs; DESMOND, J., dissents in a separate opinion.
Judgments reversed, etc. *Page 450
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