208 Mass. 1 | Mass. | 1911
Originally there were two actions, both brought by the same plaintiff, the first as he was assignee of Maximen Comeau the beneficiary, and the second as he was administrator of the estate of Olesime Comeau, the person whose life was insured. By the consent of the parties the actions were consolidated, and the trial proceeded as if only the second case remained, and in that case alone was the verdict rendered. The declaration contained four counts of which the first and second were each upon a policy of insurance, and the third and fourth were to recover premiums prematurely paid which by reason of the death of Olesime never became due.
At the trial the plaintiff alleged and offered evidence tending to show that both policies were lost. He was therefore allowed to put in secondary evidence of their contents. He did not put in any policy nor any alleged copy, but relied almost entirely upon oral evidence as to their provisions. This evidence was very meagre and manifestly very incomplete, and on the whole the case of the plaintiff at the time he rested presented a very skeletonlike appearance. The defendant however, so far as disclosed by the record, seemingly confident of the merits of its
We have thus outlined the general course of the trial because it must be borne in mind in dealing with the exceptions. The course of the plaintiff was somewhat unusual. While he contended that he was entitled to recover even if the papers introduced by the defendant as copies of the policies were correct, still that was not the only ground upon which he based his right to recover. All through the trial he contended that the alleged copies were not true copies, and that therefore the radical question, what were the terms of the contracts, was for the jury, as well as the question whether the terms, as the jury finally should find them to be, had been complied with by the plaintiff or waived by the defendant. This position of the plaintiff is clearly set forth in the charge. The presiding judge, after saying in substance that the first question to be determined was “ What was the agreement between the parties,” and that it was incumbent upon the plaintiff to prove what the policies contained, by producing them if in existence and by secondary evidence if they were lost or destroyed, proceeded as follows: “ The plaintiff in this case comes in and claims that the policies have been issued and that they have, been destroyed or lost, and
The plaintiff further contended and asked the judge to rule that the burden of proving that a correct copy of the application was annexed to the policy was upon the defendant, and further, that “ if the jury find that a correct copy of the application was not annexed to the policy,” then that part of the defense which is “ based on the insured’s alleged fraud or misrepresentation [must] fail.” It does not appear that the presiding judge made any such ruling, but the request shows the position of the plaintiff upon this point.
The second and third requests of the defendant were properly refused. R. L. c. 118, § 73, provides that “ every policy which contains a reference to the application of the insured, either as a part of the policy or as having any bearing thereon, must have attached thereto a correct copy of the application, and unless so attached the same shall not be considered a part of the policy or received in evidence.” The copies of the policies introduced by the defendant contained each a reference to the application “ as a part of this contract ” and had annexed to it a copy of the application. But, since the question whether the application was annexed to the contract was for the jury, the short answer to these requests is that they each assume that the
The exception to the refusal to give the fourth ruling requested is not argued and in view of its nature we regard it as waived.
The fifth request was properly refused. It does not state the rule of law now in force in this Commonwealth as the result of our statutes. Barker v. Metropolitan Life Ins. Co. 198 Mass. 375, 383. That case was so recently decided and the discussion, though brief, so clear, that it is necessary simply to refer to it and the cases therein cited. The present case differs materially from the case of Lee v. Prudential Life Ins. Co. 203 Mass. 299, cited by the defendant.
The sixth request was given in substance. The jury were instructed that it is incumbent upon the plaintiff “ to prove that so far as . . . [he] . . . was concerned all has been done that is required on . . . [his] . . . part... to make those policies payable, and it must appear .affirmatively on [his] behalf . . . that the premiums . . . have been paid, that the policy has become payable
The seventh request could not have been given as matter of law. It assumes that the copies produced by the defendant correctly stated the provisions of the policy as to proof of loss and as to the only way in which there could be a waiver by the defendant, an assumption the accuracy of which all along was denied by the plaintiff. One Marcotte, called by the defendant, testified that he lived in New Bedford and was an assistant superintendent of the defendant in 1903 ; that one “ Smith was superintendent,” and “ had charge of all the matters here of the company.” One Auger, called by the plaintiff, testified that as the attorney for the plaintiff he had called several times upon Smith; that the first time he called Smith said “ there had been some mistake in making out the proofs of claim in Canada and that other blanks had been sent and that he thought in a short while everything would be all right.” That there were several talks afterward between himself and Smith on the same subject, and that “ the language of the talk was that everything was all right as far as he [Smith] knew.” He further testified that other trouble arose, that this trouble was “ concerning the lost policies”; that Smith wanted affidavits about the lost policies and some were given him; that “ there was a third trouble, — Smith wanted to know ” “ where the girl had worked ” and “ where she had lived ”; that the witness “ got that information and gave it to him ”; that subsequently Smith said “ he had sent all the information on to the company and he presumed everything was all right and that we ought to be getting the check very shortly ” ; that several times after that Smith told him that “ we ought to receive a check before long ”; and that Smith also said “ he presumed everything was all right, otherwise the company would have notified him about it, that as far as he knew everything was all right concerning the proofs of death, but they wanted this other thing, what became of the policies.” That “ that was the only thing they wanted ” “ at that time.” Smith, although present at the trial, was not called by the defendant. The defendant did not put any proofs of death in evidence nor was there any agreement as to the kind of proofs required. The requirement of the proofs not being in evidence except by the
The eighth request differs from the others. It does not assume as a fact that the copies produced by the defendant are exact, but is applicable only in case the jury should find that to be the fact. In considering this request it is to be borne in mind that the declaration contained four counts of which, as above stated, the first two were upon the policies and the last two were to recover premiums prematurely paid which by reason of the death of Olesime before the time for their payment never became due. Whoever drew this request seems to have lost sight of this fact. If under all the circumstances this request could be regarded as applying only to the counts on the policies, the refusal of the judge to give it, especially in view of the provisions of the policies with reference to proofs of loss and the waiver of such proofs if insufficient, would have presented a serious question; but it cannot be interpreted in that way. The language is clear and comprehensive, and the presiding judge was justified in considering it as applicable to the whole declaration and every count thereof. It is clear that the request in its natural interpretation could not have been given.
The first request has been reserved as the last to be considered. From what has been said as to the course of the trial, especially the attitude of the plaintiff as to whether the evidence of the defendant with reference to the accuracy of the copies was to be believed and as to whether the application was annexed to the policies, it is evident that upon all the evidence the questions, what were the terms of the contract and whether they had been so far performed by the plaintiff or waived by the defendant as to make a case for the plaintiff, were for the jury.
During the trial several exceptions were taken to rulings upon the admissibility of evidence. In considering these exceptions we shall follow the order taken in the defendant’s brief. The exception to the exclusion of what Dr. Bouthillier said to Maximen Comeau cannot be sustained. The jury were told that if Olesime had the consumption when the representation was made the plaintiff could not recover. The verdict shows that
It is strenuously argued by the defendant that the judge erred in admitting the conversations with Smith, the defendant’s agent at New Bedford, and in submitting to the jury the question of waiver of proofs of loss. So far as respects the question of waiver it is to be observed that the defendant took no exception to the charge, and the short answer to the defendant’s contention about waiver might be that it is not properly before us so far as arising upon the charge to the jury. But, even if in view of the seventh and eighth requests for rulings, which have been hereinbefore considered, and the charge all taken together, it fairly may be contended that the question of waiver is indirectly raised, it could not have been ruled that there was no evidence of waiver. As we have said in considering the seventh and eighth exceptions, the accuracy of the defendant’s copies was all along denied by the plaintiff, and it was a question for the jury what were the terms of the lost policies as to proofs of loss, and whether these terms were complied with by the plaintiff or waived by the defendant. The question of Smith’s powers as agent was also for the jury, and unless the copies produced by the defendant were exact the evidence was ample, especially in view of the failure of the defendant to call Smith who was present at the trial, to show that the proofs were either satisfactory to the company or had been waived. There was evidence that Smith was the general superintendent for the defendant in New Bedford, and that he was especially acting for the defendant in this matter. We think that all conversations with him as such agent were admissible.
Several other exceptions to rulings as to evidence were taken
Exceptions overruled.