Barker v. Metropolitan Life Insurance , 198 Mass. 375 ( 1908 )

Sheldon, J.

A verdict could not have been ordered for the defendant at the trial. There was evidence, and under the instructions given the jury must have found, that the insured at the date of the policy did not have cystic disease or cystic degeneration of the kidneys, but was in sound health, and that either he made no misstatements in his application, or, if so, that they were not made with actual intent to deceive and the matters so misstated did not increase the risk of loss. R. L. c. 118, § 21. St. 1907, c. 576, § 21. As the only exception saved was to the refusal of the court to give the specific instructions requested by the defendant, the verdict must stand unless some error is shown in this respect. Barker v. Metropolitan Ins. Co. 188 Mass. 542. Emerson v. Metropolitan Ins. Co. 185 Mass. 318.

But the defendant contends that the plaintiff is bound by the statement made in the proofs of death furnished by her to the company that the insured died of cystic disease of the kidneys which was found to be of long standing. The policy of insurance was dated July 19, 1899; the insured died September 4, 1899; his last sickness, or, as the defendant contended, the final attack of his last sickness, began in August of that year. The sixth condition of the policy provided as follows: “ Proofs of death shall be made to the home office in the manner and to the extent required by blanks furnished by the company, and shall contain answers to each question propounded to the claimant, physicians and other persons indicated in the blanks. . . . The proofs of death shall be evidence of the facts therein stated in behalf of, but not against the company.” The particular statement in question was made and sworn to by Dr. Hoitt, the insured’s attending physician.

The defendant relies on the decision of this court in Campbell v. Charter Oak Ins. Co. 10 Allen, 213. But that case, although it has not been actually overruled, has been criticised, and its effect limited to the exact circumstances that were then before the court. In Cluff v. Mutual Benefit Ins. Co. 99 Mass. 317, 324, the court, in declining to apply the rule of Campbell v. Charter Oak Ins. Co., laid some stress upon the fact that the statement there considered was not sworn to by the plaintiff, and did not purport to be made by her. The court refused again to apply the rule to its full extent in City Five Cents Savings Bank v. Pennsylvania Ins. Co. 122 Mass. 165. In Hogan v. Metropolitan Ins. Co. 164 Mass. 448, a case in which the facts were much like those which appear in the case at bar, the statement that the insured had had kidney disease at a time before the date of his application and of the issuing of the policy was made by the plaintiff herself in the proofs of loss furnished by her; and she was allowed to contradict this statement, and to show that a contrary representation in the application was true. And the present Chief Justice, after stating the defendant’s contention that the plaintiff was bound by her answer in the proof of death under the rule in Campbell v. Charter Oak Ins. Co., pointed out that that case had not been generally followed in other jurisdictions, and in this Commonwealth never had been treated as enunciating a doctrine of universal application, nor extended to facts differing from its own. To the same effect are Abraham v. Mutual Reserve Fund Association, 183 Mass. 116, and Noyes v. Eastern Accident Association, 190 Mass. 171, 180,181.

The essential facts before us are not like those of Campbell v. Charter Oak Ins. Co. The statement in question was not made by the plaintiff. It was made by the attending physician, not as a matter of fact, but as an opinion founded upon the history of the case, and was plainly grounded upon information given to him by others, but by whom it did not appear. His affidavit was merely to the best of his knowledge and belief. Moreover, it was stipulated in this policy that the proofs of death should be evidence in behalf of, but not against, the company; and if merely evidence, they could not be absolutely binding upon the plaintiff.

In view of our own later decisions already referred to, we are satisfied that the rule of Campbell v. Charter Oak Ins. Co. ought not to be extended to cover a case like the one now before us. It follows that the defendant’s second request for instructions could not have been given.

The defendant also argues that the burden was upon the plaintiff to show either that the statements made by the insured in his application were true without exception, or else that any matters misrepresented therein did not increase the risk of loss and were not misrepresented with actual intent to deceive. These statements were expressly made warranties by the terms . of the application.

It is no doubt true, as argued by the defendant, that at common law, while the burden was upon the defendant to show the materiality and the falsity of any misrepresentations upon which it relied for the avoidance of any policy or other contract, the plaintiff was bound to prove the truth of or compliance with all express warranties, whether positive or negative. Campbell v. New England Ins. Co. 98 Mass. 381,389. McLoon v. Commercial Ins. Co. 100 Mass. 472. Clapp v. Massachusetts Benefit Association, 146 Mass. 519. Cobb v. Covenant Benefit Association, 153 Mass. 176. Fuller v. New York Ins. Co. 184 Mass. 12. But it has been decided by this court that the statute above cited was only declaratory of the common law as to representations, but that it changed the rule as to warranties by putting them into the same category as mere representations. White v. Provident Savings Assurance Society, 163 Mass. 108,115. The fact that the language of the statute there referred to (St. 1887, c. 214, § 21) has since been changed so as expressly to include warranties, adds force to the reasoning of the court in that decision. And see Levie v. Metropolitan Ins. Co. 163 Mass. 117; Ferguson v. Union Ins. Co. 187 Mass. 8; Kidder v. United Order of the Golden Cross, 192 Mass. 326; Paquette v. Prudential Ins. Co. 193 Mass. 215. In Nugent v. Greenfield Life Association, 172 Mass. 278, the insured warranted the truth of his answers; and yet, because the defendant had not annexed a correct copy of his application to the policy, as required by St. 1890, c. 421, § 21, it was not allowed to prove that the answers were false, — a decision which could not have been made if the distinction now contended for by the defendant had been well founded. So in Dolan v. Mutual Reserve Fund Association, 182 Mass. 413, it was said to be immaterial whether a misstatement in the application was a warranty. The statute puts both misrepresentations and warranties into the same class; and the same rule as to the burden of proof should be applied to each of them. The statute does not purport to apply to a warranty in the body of the policy; and as to such a warranty the common law rule remains in force, as was held in this very case in 188 Mass. 542.

We need not consider whether or how far this rule will be affected by the provisions of St. 1907, c. 576, § 75, cl. 3.

It follows that the defendant’s fifth request stated and its eighth request assumed an incorrect rule of law; and so both of them were properly refused.

Nor should either of the other requests, so far as refused, have been given. There was evidence for the jury on all the matters referred to in them. Considering the testimony of Doctor Cote and the fact, which now must be taken to be established, that the insured was in sound health when the policy was dated and delivered, it cannot be said as a matter of law that any mis-, representation by the insured as to the cause of his brother’s death increased the risk of loss. Giving to the statements in the proofs of death full force as evidence for the defendant, yet it was for the jury to say whether the representations relied on by the defendant were false, whether they were made with actual intent to deceive, and whether the matters misrepresented or warranted increased the risk of loss. The case was submitted to the jury with proper instructions. Flynn v. Massachusetts Benefit Association, 152 Mass. 288. Ring v. Phoenix Assur. Co. 145 Mass. 426.

Exceptions overruled.