Abraham v. Mutual Reserve Fund Life Ass'n , 183 Mass. 116 ( 1903 )

Lathrop, J.

1. The principal question in this case is whether evidence is admissible to explain the statement in the proofs of death, when the defendant has not been notified before the trial of the fact that the statement was erroneous. We-do not see how this case can be distinguished from Hogan v. Metropolitan Life Ins. Co. 164 Mass. 448, where such evidence was held to be admissible. The defendant in that case, as in this, relied upon the case of Campbell v. Charter Oak Ins. Co. 10 Allen, 213, in which it is said that corrections of mistakes in proofs of death “ are not for the first time to be made known to the insurers at the trial of the action to recover for the loss, by the introduction of evidence showing that the statements filed were not true in a material fact, which, if it existed as stated, was fatal to the right of the insured to recover.” The court in its opinion, after stating that Campbell v. Charter Oak Ins. Co. had not been generally followed in other jurisdictions, said: “ In this Commonwealth it has never been treated as enunciating a doctrine of universal application, nor extended to facts differing from its own.” The case was finally decided on the ground that if the statements in the application were warranties, the St. of 1887, c. 214, § 21, re-enacted in the St. of 1894, c. 522, § 21, applied, and that falsity of statement would be a defence only if the matter misrepresented increased the risk, or if the statement was made with intent to deceive.

This provision applies as well to a foreign corporation doing business, in this Commonwealth, as to a domestic corporation. Dolan v. Mutual Reserve Fund Life Association, 173 Mass. 197. See also Stocker v. Boston Mutual Life Association, 170 Mass. 224.

We are of opinion therefore that the evidence was rightly admitted.

2. The defendant next contends that in the absence of any evidence offered by the plaintiff to show that the defendant was lawfully admitted to do business in this Commonwealth, the contract was illegal and the plaintiff cannot recover on it. For this proposition the defendant relies upon the case of Claflin v. United States Credit System Co. 165 Mass. 501. We do not understand that case as deciding any more than that where it appears or is admitted that an insurance company is doing business here without complying with the laws of this Commonwealth, a contract of insurance made by it is illegal, and recovery cannot be had upon it. It certainly was not intended to go further than this. The illegality of a contract is a matter of defence, and the burden is on the defendant to show it. It may appear on the face of the contract or by evidence aliunde. See Riley v. Jordan, 122 Mass. 231. In some way it must appear. We are not prepared to hold that in an action on -a policy of insurance entered into here by a foreign insurance company through its agent doing business in this Commonwealth, the burden of proof is on the plaintiff to show that the defendant was lawfully doing business here.

Exceptions overruled.