Stephen B. Barteau, Executor, etc., Appellant, v. The Phœnix Mutual Life Insurance Company of Hartford, Respondent

Stephen B. Barteau, Executor, etc., Appellant, v. The Phœnix Mutual Life Insurance Company of Hartford, Respondent. To avoid a policy of life insurance upon the ground of misrepresentation, it must, in the absence of fraud, be in respect to some circumstance or fact material to the contract, and by which the insurer is induced to undertake the risk. A warranty, however, must be literally true, whether the fact warranted be material or not. In case of a warranty, therefore, the question, how far the fact was or was not material, is not to be considered. Knowledge on the part of the agent of a life insurance company of the falsity of a warranty will not relieve the assured from a forfeiture of the policy. (Argued November 15, 1876; decided November 28, 1876.) This action was upon a policy of life insurance. The policy contained a provision that, in case any of the statements or declarations made in the application shall be found in any respect' untrue, the policy shall be void, and in the application the applicant stated that he was aware that any untrue answers to the interrogatories making a part of the application would vitiate the policy and forfeit all payments under it. One of the interrogatories was whether the applicant had had certain specified diseases, among others paralysis, to which he answered “ no.” Held, that the provision of the policy and the statement in the application made this a warranty, but that it was immaterial whether it be considered a warranty or not, if treated as a mere representation it was one material to the risk, and if untrue avoids the policy; the court stating the rule as above, citing Bunyan on Life Insurance (page 31), Higbee v. Gum-d/lcm Mutual Insurance Company (53 N. Y., 603), Chase v. Hamilton Insurance Company (20 N. Y., 52). Also held, that knowledge of the agent of the company of the falsity of the warranty would not relieve the insured or his representatives from the consequence of a breach. (Chase v. Hamilton, 20 N. Y., 52 ; Ripley v. HJtna Inswrance Company, 30 id., 136; Brown v. Cattaraugus Mutual. Ins. Com pcmy, 18 id., 387 ; Fort v. FEtna Fife Ins. Oompa/ny, 61 id., 571.) The residue of the opinion was taken up with a discussion of the evidence, the court holding that, by it, the fact that the insured had had paralysis prior to the application, was so clearly established that a verdict for defendant was properly directed. 11. F. Andrews for the appellant. Samuel Rand for the respondent. [MAJORITY — Allen, J.,] Allen, J., reads for affirmance. All concur. Judgment affirmed.