192 Mass. 326 | Mass. | 1906
The questions presented by these exceptions may be taken up in the order in which they appear in the record. Among the most important is the refusal to give five requests for rulings that as matter of law the answers of the insured in her application which forms a part of the contract having been untrue, and the representations being material, the certificate of insurance either never attached, or was voidable at the election of the defendant. Under St. 1894, c. 522, § 21, as amended by St. 1895, c. 271, now R. L. c. 118, § 21, which has been held to include fraternal beneficiary corporations, unless such misrepresentations were made with an actual intent to deceive or the matter misrepresented increased the risk, they are to be deemed ineffectual either to prevent the policies from attaching, or to avoid them. Stocker v. Boston Mutual Life Assoc. 170 Mass. 224. By St. 1890, c. 421, § 27,
There was a further inquiry in reference to her occupation which seems to have been that of a housewife, and here it also could have been determined that in so far as such a question was applicable her usual calling had not been interrupted in the sense that by reason of long continued or severe sickness she had been rendered incapable .of supervision of the household or incapacitated from resuming her ordinary labor. These
The third exception is to a refusal to grant a request, that a verdict be ordered in the defendant’s favor because by the self executing action of one of its by-laws a failure by the decedent to pay or tender an assessment that had accrued during her sickness operated to dissolve her membership, and forfeited the insurance. While her complete physical and mental disability would not relieve her from an exact performance of this condition, a by-law embodying this' specific purpose, which by reference is made a part of the certificate, holds a place in this form of insurance similar to a clause of forfeiture for a failure to pay the annual premium, after the first has been paid, as provided in contracts of regular life insurance. Wareham Bank v. Burt, 5 Allen, 113, 116. Thompson v. Insurance Co. 104 U. S. 252, 259. Carpenter v. Centennial Mutual Life Assoc. 68 Iowa, 453. Yoe v. Masonic Mutual Benevolent Assoc. 63 Md. 86, 93. Commonwealth v. Wetherbee, 105 Mass. 149. McAllister v. New England Ins. Co. 101 Mass. 558, 561. In either, such a provision is inserted for the benefit of the insurer upon whom consequently rests the burden of proving that by reason of non-compliance a forfeiture follows, either of the certificate, or of the policy. Kingsley v. New England Ins. Co. 8 Cush. 393, 404. Hodsdon v. Guardian Ins. Co. 97 Mass. 144. Rice v. New England Mutual Aid Society, 146 Mass. 248, 252. Lyon v. Royal Society of Good Fellows, 153 Mass. 83, 84. Waterworth v. American Order of Druids, 164 Mass. 574. Campbell v. Knights of Pythias, 168 Mass. 397, 400. Petherick v. Order of Amaranth, 114 Mich. 420, 423. Ferguson v. Union Ins. Co. 187 Mass. 8. Harris v. North American Ins. Co. 190 Mass. 361, 369.
But if under the present certificate lapse of membership by
Exceptions overruled.