153 Mass. 176 | Mass. | 1891
The subjoined opinion was prepared by Mr. Justice Devens, and was adopted as the opinion of the court after his death by the Justices who sat with him at the argument.
By the terms of his application, which is referred to and made a part of the benefit certificate issued to the insured, he warranted the answers to the questions propounded “ to be full, complete, and true,” and agreed that the answers and application should form the exclusive and only basis of the contract between himself and the defendant, and further agreed that, if “ any misrepresentations or fraudulent or untrue answers” had been made, the contract should be null and void. The acknowledgment at the end of the application, which was subscribed by the insured, and which contains the agreement above referred to, controls and governs the answers to which it refers, nor does it seem important to determine whether*, they are to be treated as warranties which are to be literally complied with, or as representations only; as, if the latter, they were material to the risk, and were so made and treated by the parties.
The sixth question put to the applicant in form A of the application was, “ Have you personally consulted a physician, been prescribed for, or professionally treated, within the past ten years?” To this question the insured answered, “No,” and it has been found by the jury, upon the second issue submitted to them, that this answer was false. The plaintiff contended that such an issue should only be found against her in case the answer was intentionally false. In our view, the insured having made the truth of his statements the basis of his contract, it was sufficient for the defendant to show that this statement was actually untrue.
The plaintiff further contended, that the question referred to in the application should be construed as referring to a specific disease, and that if the insured had consulted or been prescribed for by a physician for a pain that did not amount to a disease his answer to this question would not prevent the plaintiff from recovering. The presiding judge declined to instruct the jury in accordance with this contention, and instructed them that if the insured, being as he supposed in need of a physician, went to one for the purpose of consulting him as to what was the matter with him, and had an interview, answering such inquiries as the physician deemed pertinent, receiving aid, advice, or assistance from him, that the insured consulted a physician within the meaning of the interrogatory; and further, that if they found that he went to a physician for the purpose of procuring
In Metropolitan Ins. Co. v. McTague, 20 Vroom, 587, it was held that where the applicant stated that he had not consulted a physician or been prescribed for by one, and such statement was shown to have been false by proof of a prescription received, there could be no recovery, although it appeared to have been given for a cold. The court say: “ That representation did not aver a condition of health, or that it was requisite or proper to consult a physician. It averred that he had not consulted a physician or been prescribed for by a physician. The fact found contradicted this averment, whether the consultation and prescription related to a real disease or an apprehension of disease.”
In the case at bar, after retiring to their room, the jury re
The plaintiff also insists that the last clause of the definition as first given was a charge upon the facts. It is perhaps sufficient to say that it was clearly withdrawn, and the latter definition given in place of it. We do not, however, consider that
On the back of the certificate, there is, among many other conditions, one which recites that the contract shall be subject to and construed only according to the laws of Illinois. The plaintiff relies on the case of Continental Ins. Co. v. Rogers, 119 Ill. 474, as being the law of Illinois. In this case it is said that, as a general rule, where the application for insurance on a person’s life is expressly declared to be a part of the policy, and such statements are warranted to be true, they will be deemed material, whether actually so or not. But as a qualification, where a statement in a policy of insurance that the answers, statements, etc. in the application are warranted by the insured “to be true in all respects,” is followed by the further statement “ that if this policy has been obtained by or through any fraud, misrepresentation or concealment, said policy shall be absolutely null and void,” which fraud relates to the answers to the questions in the application, erroneous answers not material to the risk, honestly made in the belief that they are true, will not be so far binding on the insured as to present any obstacle to his recovery. The case is not decided on this point, but on the ground that, whether answers are warranties or representations, the burden of proving their falsity is upon the defendant, a proposition not controverted by the defendant in the case
In the case at bar, the policy is declared to be avoided not only by misrepresentations and fraudulent answers, but by those which are untrue; and the question which is found to have been untruly answered must be deemed to have been made by the parties one material to the risk. Bill dismissed.