295 Mass. 169 | Mass. | 1936
This is an action of contract. There are two counts in the plaintiff’s declaration. Recovery is sought in the first count for the amount of an insurance policy due to the beneficiary and in the second count, in the alternative, for the amount of the premiums paid upon that policy. After verdict, by agreement of the parties the case was reported to this court upon the stipulation that, if the rulings and instructions of the trial judge were correct, judgment is to be entered for the plaintiff for the amount of the premiums; and, if erroneous, judgment is to be entered for the plaintiff for the full value of the policy.
Underlying facts are that an insurance policy in the amount of $10,000 was issued by the defendant upon the life of the plaintiff’s husband on September 5, 1928, payable to her as beneficiary, that the insured died on October 27, 1928, and that there has been compliance with all requirements as to proof of loss. The matters now in controversy relate to the affirmative defence that misstatements made by the insured in his application for the policy either were intentionally fraudulent or caused the risk of loss to appear less than the true information would have shown. G. L. (Ter. Ed.) c. 175, § 186.
The burden of proof respecting such misrepresentations in procuring the policy is upon the insurer. McDonough v. Metropolitan Life Ins. Co. 228 Mass. 450, 452. Smardon v. Metropolitan Life Ins. Co. 243 Mass. 599, 601. The defendant proposed to sustain this burden by showing that the application for the policy contained statements which were untrue. It is provided by G. L. (Ter. Ed.) c. 175, § 131, that “unless a correct copy of the application is endorsed upon or attached to a policy of life or endowment insurance, when issued, the application shall not be considered a part
The plaintiff introduced evidence tending to show that the doctor, since deceased, who examined the insured at the time he applied for the policy, changed answers to certain questions in the application after it had been signed by the insured and before it was filed with the defendant. It was agreed by counsel for both parties that in the application answers to questions concerning the dates and causes of death of the parents of the insured had been altered at some .time by some one, the original answers having been crossed out and new ones superimposed. In substance these alterations were that, under the head "Family Record,” with reference to the father of the insured as originally written, the figures "65” were placed "in the age column,” the .date "1880” as time of death, and "Do not know” under the inquiry as to the cause of death; that, with reference to the mother of the insured, under the inquiry as to the cause of death was written "Do not know,” and the date of death " 1898 ”; that, after the signing of the application in this form, the insured left and went to his place of business and in his absence the physician called for and obtained from the daughter of the insured some other policies of insurance on his life and, after examining them, made changes in the application by which, in the case of the father of the insured, the cause of death was stated to be "appendicitis” in place of the answer "Do not know,” and "1885” in place of "1880” and, in the case of the mother, the cause of death was stated to be “rheumatism” with
On this state of the evidence the plaintiff excepted to rulings of the trial judge (1) excluding from the evidence the policy without the paper attached to it purporting to be a photostatic copy of the application of the insured, (2) admitting evidence tending to show the falsity of answers (other than those which had been altered) made by the insured in his application, and (3) ruling that the defendant had sustained as matter of law the burden of proving the exactness of the photostatic copy of the application attached to the policy. The correctness of all these rulings depends upon the soundness of the ruling that the defendant had sustained the burden of proving the accuracy of the copy of the application attached to the policy. If this ruling was right, there was no error in the others.
The enactment of G. L. (Ter. Ed.) c. 175, § 131, already quoted, was a constitutional exercise of legislative power to regulate insurance. Its purpose is to furnish to every person holding insurance upon his life a copy of the application, upon which the effectiveness of the policy may in some circumstances depend, so that he may know the exact terms of the contract. Therefore, the failure of the insurer to attach to the policy a correct copy of the application prevents reliance by the insurer, in an action against it on the policy, on misstatements in the application as a defence. Considine v. Metropolitan Life Ins. Co. 165 Mass. 462, 466. Holden v. Prudential Ins. Co. of America, 191 Mass. 153, 157. Langdeau v. John Hancock Mutual Life Ins. Co. 194 Mass. 56, 64. New York Life Ins. Co. v. Hardison, 199 Mass. 190, 194. The same consequences follow where the insurer
As already recited, there was evidence tending to show that, after the application was signed by the insured and before it was filed with the insurer, it was altered by the examining physician of the insurer. The question at issue is whether "a correct copy of the application” of the insured was attached to the policy. The argument has proceeded on the footing that “a correct copy of the application” as filed with the defendant was attached to the policy, but that “a correct copy óf the application” as signed by the insured before any alteration was not so attached. The plaintiff contends that no such copy was attached because of the alterations in the paper as signed by the insured. The defendant contends that the paper actually filed with it as the basis of the issuance of the policy is the application. The statute contains no definition of its phrase "correct copy of the application.” That must be determined with reference to the words of the statute as applied to the facts of the particular case. Alterations in the application here in issue related to parts describing family history and the causes of death of the parents of the applicant. Alterations are regarded as material when they might affect the rights of the parties. Inaccuracy in copying such parts of the application has been held to be material, requiring the exclusion of the application. Nugent v. Greenfield Life Association, 172 Mass. 278, 285. Manhattan Life Ins. Co. v. Albro, 127 Fed. 281, 282.
The case at bar is different from any others which have been decided concerning G. L. (Ter. Ed.) c. 175, § 131, in that the alleged change in the application was not made through the intention or the carelessness of the insurer.
It is provided by G. L. (Ter. Ed.) c. 175, § 186, that "No oral or written misrepresentation or warranty made in the negotiation of a policy of insurance by the insured or in his behalf shall be deemed material or defeat or avoid the policy or prevent its attaching unless such misrepresentation or warranty is made with actual intent to deceive* or
Whether the existence of certain ailments increased the risk of loss under said § 186, commonly is a question of fact and not of law. Thus it has been held that the existence of rupture, Levie v. Metropolitan Life Ins. Co. 163 Mass. 117; Collins v. Casualty Company of America, 224 Mass. 327, 332; diabetes, De Guzzi v. Prudential Ins. Co. 242 Mass. 538; but compare New York Life Ins. Co. v. Simons, 60 Fed. (2d) 30, 33; kidney ailments, Hogan v. Metropolitan Life. Ins. Co. 164 Mass. 448, 450; Barker v. Metropolitan Life Ins. Co. 198 Mass. 375; Bright's disease, Kelly v. Mutual Life Ins. Co. 207 Mass. 398; angina pectoris, Foss v. Mutual Life Ins. Co. 247 Mass. 10, 15; sarcoma, Smardon v. Metropolitan Life Ins. Co. 243 Mass. 599; or various other disorders requiring medical attention, Levie v. Metropolitan Life Ins. Co. 163 Mass. 117, 119; Kidder v. Order of Golden Cross, 192 Mass. 326, 333, 334; Truedson v. Metropolitan Life Ins. Co. 261 Mass. 121, 124-125, do not require a ruling of law that the risk of loss was increased. On the other hand, there are conditions and diseases of such a nature as to require the conclusion as a matter of law that a misrepresentation in
In the case at bar there was evidence warranting a finding that the insured had disease of the heart serious enough to require hospitalization and other medical attention; there was nothing which required a ruling of law that the risk of loss was thereby increased. Foss v. Mutual Life Ins. Co. 247 Mass. 10, 15. Smardon v. Metropolitan Life Ins. Co. 243 Mass. 599. Although the evidence appeared very persuasive, the question ought not to have been taken from the jury. McDonough v. Metropolitan Life Ins. Co. 228 Mass. 450, 452. Salem Trust Co. v. Deery, 289 Mass. 431, 433. The result is that the rulings of the trial judge upon this point were erroneous.
The parties have stipulated for the entry of judgment in the event that the rulings of the trial judge are either correct or erroneous. The stipulation does not cover the event which has come to pass, namely, rulings covering one branch of the case are not reversed and rulings covering another branch are held erroneous. We think, therefore, that the stipulation ought to be vacated and the case to stand for a new trial. Delano v. Smith, 206 Mass. 365, 372. Symmes Arlington Hospital, Inc. v. Arlington, 292 Mass. 162, 165.
So ordered.