163 Mass. 117 | Mass. | 1895
The written application for insurance upon which the policy issued was made on June 6, 1892, and the assured died of acute consumption on January 12,1893. The application contained an agreement that its answers and statements should be part of the contract of insurance, and that any false, incorrect, or untrue answer should render the policy void. Assuming that this language gave to each statement of the application the technical character of a warranty, nevertheless our
Whether the statements and answers of the application were incorrect, and whether, if they were incorrect, the misrepresentations were made with actual intent to deceive, or, if not so made, whether the matter misrepresented increased the risk of loss, were all questions of fact, to be submitted, if there was a conflict of evidence, to the jury with proper instructions. The only exception stated in the bill is to the refusal of the court to rule that, upon all the evidence, the plaintiff was not entitled to recover, and to direct a verdict for the defendant. We might overrule the exceptions upon the ground that the bill does not present or purport to present to us either all the evidence or the substance of the evidence. But assuming in favor of the defendant that the substance of the evidence is stated, in our opinion the ruling asked could not have been properly given.
We construe the question, “ Are you ruptured, and if so, do you wear a well-fitting truss ? ” to relate to the time of the answer; and, conceding that upon the evidence the only reasonable finding was that the assured had suffered from a strangulated hernia in the year 1891, there was evidence tending to show that he had recovered from it before the time of the application. It is not a matter of law that a person who has once had hernia is thenceforward “ ruptured.” Whether the negative answer to this question was correct or incorrect was therefore a question of fact, and the jury may have found that the answer was correct.
We also assume that by a fair construction the assured must be taken to have stated that the services of his usual medical attendant, whose name he gave, had been required only for the “ grippe,” and that he had consulted no other physician, and that, in view of the fact that both his usual medical attendant and another physician had operated upon him to reduce the hernia spoken of, both of these statements were misrepresentations.
But the two facts made essential by the statute to avoid the policy were still to be found by the jury as to these misrepresentations also, and the evidence stated in the bill of exceptions did not require a finding upon them for the defendant. Upon the evidence, all the misrepresentations might have been found to be made without actual intent to deceive, and it might also have been found that the matters misrepresented did not increase the risk of loss. There was a motion to set aside the verdict as against the evidence and the weight of the evidence, but upon this bill of exceptions we cannot review the order of the justice before whom the trial was had, denying the motion.
Exceptions overruled.