July 14, 1936
NEW YORK LIFE INS. CO.
On Petition for Rehearing.
This case comes before us upon petition of the appellee, defendant below, for the rehearing of a decision of this court filed February 5, 1936. The petitioner contends that under the law of New Jersey a policy of life insurance is voided upon proof that there was a misrepresentation in a material matter and that this court erred when it held that the misrepresentation must be not only in a material matter but must have been intentionally made by the assured. As we read the New Jersey cases cited by the petitioner the rule at law differs from that in equity, for whereas in equity an untruthful representation of a material fact is deemed fraudulent, at law an untruthful representation is not fraudulent unless made with the intention to defraud. The instant case was one brought at law and the rule prevailing in law actions is applicable. Many of the cases cited by the petitioner are equity cases, and therefore not controlling. Moreover, the facts in the cases cited by the petitioner were such that no fair-minded jury could reasonably reach any conclusion other than that the assured had intentionally misrepresented a material fact. See Mutual Life Insurance Co. of N.Y. v. Hilton-Green, 241 U.S. 613, 36 S. Ct. 676, 60 L. Ed. 1202. The instant case, on the contrary, presented a genuine controversy. The jury could properly have determined that the assured suffered from an attack of indigestion, recovered within a two-day period, and forgot the incident at the time of his application for insurance, which was not made until two years after the illness. Had the jury so found, it would have been justified in returning a verdict for the appellant.
We adhere to our conclusion that the District Court erred in refusing to present the issue of intention to the jury and in directing a verdict for the appellee, and the order of reversal with a venire de novo will stand.
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