Paquette v. Prudential Insurance Co. of America , 193 Mass. 215 ( 1906 )

Braley, J.

These cases were tried together, and the exceptions raise certain questions relating to the admission and exclusion of evidence, to the refusals to rule as requested, and to the rulings given. Under' the terms of the contracts the plaintiffs were required to prove the death of the insured to the satisfaction of the company before the amount of the insurance became payable. If this event had been admitted by the pleadings, or at the trial, any real or supposed prejudice affecting the defence which the answers to certain of the questions propounded by the company may have contained would have been avoided. Instead of making such admission, among other allegations, the defendant’s answer contained a general denial, which put in issue this material fact, and therefore the papers constituting the proofs of death became relevant. The defendant argues that if admitted for this limited purpose, they should not have gone to the jury as they tended to impair its defence to the other issues on trial. Having been put in evidence generally, it was within the discretion of the presiding judge either to submit or withhold them from the consideration of the jury, and to the exercise of this discretion no exception lies. Besides the defendant might have asked for an instruction limiting the use of these papers to the special purpose for which they had been offered, but having neglected to make this request it has no just ground of complaint that the evidence subsequently was not limited. Burghardt v. Van Deusen, 4 Allen, 374, 375. Krauss v. Cope, 180 Mass. 22. See Jennings v. Rooney, 183 Mass. 577, 584; O'Driscoll v. Lynn & Boston Railroad, 180 Mass. 187, 189.

When a witness has made material statements contrary to those given by him in his testimony such statements may be introduced for the purpose of contradicting him, and the admission during the cross-examination of Dr. Cooley, a witness called by the defendant, of a medical certificate signed by him in which he stated that he had examined the insured on September 19, 1904, was competent for the purpose of contradicting his previous evidence that he had not made an examination at that time. Handy v. Canning, 166 Mass. 107, 109. See Jennings v. Rooney, ubi supra; Robinson v. Old Colony Street Railway, 189 Mass. 594, 596. The description of the physical appearance of the insured in the evidence in reply also was competent to rebut the testimony of the defendant’s witnesses that he appeared to be in unsound health, and that his general appearance showed indications of the excessive use of intoxicants.

- The remaining and principal exception is to the exclusion of a negative answer to an inquiry whether the insured ever had used malt or spirituous liquors to excess. A policy of life insurance may contain conditions not found in the application, but outside of an independent agreement the application and policy together usually form the contract. Commonwealth Ins. Co. v. Knabe Manuf. Co. 171 Mass. 265, 270. Millard v. Brayton, 177 Mass. 533, 537. In themselves these policies contained neither the medical examination and the agreement of the application therewith connected, nor any express condition that as such they were included. It is plain, however, that they were intended to be incorporated, as these declarations and answers relating to his past and present condition of health and family history were essential inquiries which upon their face showed that the life proposed was an insurable risk. But if not found in the policies, then resort must be had to the paper called the application, which by reference is incorporated. It would be a narrow construction to say that the first page of this paper alone constituted the negotiations, when the second page contained the declarations and statements of the insured without which a policy would not have been issued. The term “ application ” as there used was intended to include and did include all the statements on both pages except the medical examiner’s report which were considered necessary to form the basis of an intelligible and consistent contract of life insurance, and as thus defined the purpose of the parties is made effectual by a uniform construction which gives effect to every material portion of the entire contract. McCoy v. Metropolitan Ins. Co. 133 Mass. 82, 85. Millard v. Brayton, ubi supra. The copy of the application attached to the policies did not contain the question and answer excluded, and because no copy of the declarations and answers in which they are found was annexed they were not admissible under the statute, R. L. c. 118, § 73. Nugent v. Greenfield Life Assoc. 172 Mass. 278. Johnson v. Mutual Ins. Co. 180 Mass. 407. The defendant, moreover, relies upon the exception that whenever a scheme of actual fraud in procuring the insurance, of which the negotiations formed a part, is pleaded and shown, then even if the application is not attached it may become material, and admissible with other evidence on this issue. Carrigan v. Massachusetts Benefit Assoc. 26 Fed. Rep. 230. Holden v. Prudential Ins. Co. 191 Mass. 153. In the first paragraph of the answer it is alleged that a conspiracy fraudulently to obtain a series of policies upon the life of the insured was planned by him and the plaintiffs, and that in pursuance of their plan policies were written by some of the companies to whom they applied, although other companies declined the risk because of his unsound condition of health. This defence seeks to avoid the policy, not because of a single material misrepresentation, but of a concerted plan which existed at the inception of the contract to defraud the insurer, who for this reason did not become bound. But the statute would be rendered nugatory if under the guise of this defence an unattached application was admitted without a previous foundation being laid, and some evidence at least must first be offered to sustain such an allegation before an application not otherwise admissible can be introduced. While upon proof that such a conspiracy had been formed similar transactions which were a part of the general scheme would have been admissible to prove fraudulent intent, the defendant failed to supply this evidence. Jordan v. Osgood, 109 Mass. 457,461. New York Ins. Co. v. Armstrong, 117 U. S. 591. The exclusion, therefore, of so much of the second page of the exhibit as contained these declarations was right, even if the first page had previously been admitted without any objection by the. plaintiff, and the defendant’s eleventh request was properly refused.

We do not consider the exception to the giving of the plaintiffs’ fifteenth request as it has been waived, and the defendant’s remaining requests also were rightly refused, and the rulings given correctly stated the law; By pleading that the policies were avoided by the material misrepresentations of the insured as to his health and habits of sobriety, the burden rested on the defendant to prove these allegations, which if established would have worked a forfeiture of the insurance. Cluff v. Mutual Benefit Ins. Co. 13 Allen, 308, 316. Campbell v. New England Ins. Co. 98 Mass. 381. Ferguson v. Union Ins. Co. 187 Mass. 8. Kidder v. United Order of the Golden Cross, 192 Mass. 326, and cases cited.

Exceptions overruled.