Clark v. Mutual Life Insurance, 251 Mass. 1

Clark v. Mutual Life Insurance

251 Mass. 1 | Mass. | 1925

Carroll, J.

In September, 1919, the defendant issued an insurance pohcy on the life of George W. Bassett, payable in the event of his death to his wife, the plaintiff in the present action. The pohcy lapsed because of default in payment of the premium due September 22, 1920, and a “ personal apphcation ” for reinstatement without medical examination was made by the insured on November 6, 1920. This apphcation provided, “ I agree on behalf of myself and of every *3person who has or shall have any interest in said policy that the foregoing statements and answers are true and are offered to The Mutual Life Insurance Company of New "York as an inducement for it to waive the default which has occurred in the payment of the above mentioned premium or premiums and loan interest and to reinstate said policy, and further that the same are material to the risk which the Company is asked to assume by reinstating said policy.” In reply to the question, “ What illnesses, diseases, injuries or surgical operations have you had during the past five years or since the date of said policy, if less than five years in force? ” the insured answered, “ None.” In answer to the question, “ State every physician or practitioner who has prescribed for or treated you, or whom you have consulted during the past five years or since the date of said policy, if less than five years in force,” he replied, “ None.” The plaintiff put in evidence the policy and proof of loss. She testified that the insured died in September, 1921; that she never knew he had consulted a doctor “ for any physical ailment up to the time of his death, except when he hurt his arm in the store lifting a barrel . . . that this accident happened after the policy of insurance was issued; . . . that he had gone to see a physician, Dr. Hopkins, on account of his arm, after lifting a barrel of sugar, but she could not tell just when it was; she knew he went but didn’t know what for.” She further testified that Dr. Hopkins called at her home in February, 1920, and she “ told the doctor [that Bassett] . . . had a cold, and he told him to take care of it, that was all ”; that her husband visited Dr. Hopkins at his office, for his arm. Another witness testified that the accident to Bassett’s arm happened in February or March, about eight or nine months before his death. The plaintiff signed the proofs of loss. To the question therein, “ When did the health of deceased first begin to be affected? ” she answered, “ June 1921 ”; also that the immediate cause of his death was “Heart Failure”; and that Dr. O’Leary of Wakefield, Dr. Hopkins and Dr. Worthing, of Chatham, attended him or prescribed for him during the two years preceding his death. On cross-examination she testified *4that she did not remember whether Bassett “ went to Dr. Hopkins’ office more than once, but she thinks he did.”

In answer to interrogatories to the defendant, which the plaintiff put in evidence, the defendant stated that the insured had acute bronchitis February 12, 1920, valvular heart disease with mitral regurgitation, dilation of the heart, and systolic murmurs, for an unknown period prior to February 20,1920, until the date of his death; that he had been treated by Dr. Hopkins, “possibly by Dr. T. A. O’Leary, . . . now deceased, and by Dr. O’Brien. ... I am informed that these doctors treated said Bassett for his heart trouble.” Dr. Hopkins, called by the defendant, testified that he attended Bassett professionally February 9, 1920, at his (Bassett’s) home; he was then suffering from a cold; that he saw him again February 12, when he had acute bronchitis; that on February 20 he came to the doctor’s office, when an examination was made and it was found that the insured “ showed marked mitral regurgitation, with a systolic murmur ”; “ that the mitral valve was leaking.” He told Dr. Hopkins that he had seen a doctor in Wakefield and in Roxbury; that he had been examined at the Homeopathic Hospital in Boston and a blood count was taken; “ that Dr. Caldwell advised him to have a complete physical examination as soon as he came home.” At the close of the evidence the defendant moved that the court direct a verdict for the defendant, which motion was denied and defendant excepted.

There was no question that the policy had lapsed. It was necessary, therefore, for the plaintiff to prove the truth of the facts stated in the “ Application for Reinstating Policy Without Medical Examination.” The insured agreed as a condition precedent to his reinstatement, that every one of his answers was true, that these answers were material to the risk. The burden of proof was upon the plaintiff to establish that the insured had had no “illnesses, diseases, [or] injuries” since the date of the policy, and had not been treated or prescribed for, or had not consulted a physician since the date of the policy. The plaintiff’s own testimony showed that Bassett had gone to Dr. Hopkins’ office on *5account of an injury to Ms arm, although she stated tMs was after the date of the policy, probably meaning by tMs statement the date of its renewal; but she testified that Dr. Hopkins was at her home in February, 1920; that her husband was suffering from a cold, and that Dr. Hopkins treated him, and the proofs of death wMch she introduced as a part of her case, showed that the insured died of heart failure, and had been prescribed for by Dr. Hopkins, and two other physicians during the two years preceding his death.

G. L. c. 175, § 186, providing in substance that no misrepresentation or warranty made in the negotiation of a policy of insurance would be deemed material, or defeat the policy, unless the misrepresentation or warranty was made with intent to deceive, or unless the matter misrepresented or made a warranty, increased the risk of loss, is not applicable to the facts in this case: that statute does not apply to an application for reinstatement, it has reference only to the representations made when the policy is issued.

In an application for reinstatement such as the one before us the parties are bound by the terms of the contract. They agreed that all the answers were material to the risk, and were true. If the insured consulted a physician, or was treated by one, or had been prescribed for by a physician since the date of the policy and before the date of the application, or if the deceased had an ilMess, disease or injury of any kind during that time, Ms answers were not true. By the plaintiff’s own evidence, by wMch she was bound, it appeared that the insured had consulted a physician for medical treatment in February, 1920, and he then had an “ ilMess ” of some kind. If he had a cold at tMs time and a physician was consulted, or if he was treated by the physician, that fact was material. In addition to tMs, the testimony of Dr. Hopkins was not contradicted in its essential particulars: he testified that the insured was attended by him and found to be suffering from heart trouble in February, 1920, before the application for reinstatement was signed. Holden v. Metropolitan Life Ins. Co. 188 Mass. 212.

The evidence did not warrant a finding that the statements made by the insured in the request for reinstatement *6were true. The burden resting on the plaintiff was not sustained. There being no evidence warranting a finding that the insured had complied with the conditions precedent mentioned in the application, a finding that the policy was revived was not warranted and the plaintiff cannot recover. Rainger v. Boston Mutual Life Association, 167 Mass. 109. Fondi v. Boston Mutual Life Ins. Co. 224 Mass. 6, 7. Reidy v. John Hancock Mutual Life Ins. Co. 245 Mass. 373.

The motion for a directed verdict should have been allowed; and under G. L. c. 231, § 122, judgment is to be entered for the defendant.

So ordered.