Reagan v. Union Mutual Life Insurance

Knowlton, C. J.

The questions that are now material under the defendant’s bill of exceptions are few, and by no means difficult. The policy contains this clause: “ This policy is incontestable from date of issue for any cause, except non-payment of premium.” In the former decision upon the report in this case, which may be found ino!89 Mass. 555, it was held that this provision does not preclude the defendant from showing that the contract of insurance was procured by fraud of the insured.

At the last trial the judge ruled, at the request of the defendant, for the purposes of the trial, that the policy is incontestable except for fraud. The defendant cannot complain of this ruling, which was in accordance with its theory of the case. In this view of the law the only defense open was fraud, and the possibility of innocent false representations of the assured as to matters material to the risk was not properly a subject for the consideration of the jury. Repeatedly in the charge the jury were told that, if the plaintiff’s intestate, to procure the policy, made representations to the defendant with intent to deceive, it would preclude recovery. With this the judge coupled, as an alternative that would also preclude recovery, a possible finding that, without intent to deceive, he made misrepresentations as to a matter which increased the risk of loss. Upon the construction given to the above quoted clause, at the request of the defendant, this latter instruction was too favorable to the defendant. Nothing less than actual fraud was open as a defense. If the clause had been given the construction to which the judge was at first inclined, namely, that it was wholly void, a different question would have arisen.

In one part of the charge the judge, apparently by inadvertence, used the word “and” instead of “or” between these two propositions that may be relied on to avoid a policy, as they are stated in the R. L. c. 118, § 21; but his repeated use of the word “ or ” in the same connection in other parts of his charge, was such as must have given the jury a correct understanding of the case upon the instructions taken as a whole.

The judge told the jury that “ the contract was effected in Maine,” and held that it was governed by the laws of that State. There was evidence tending to show that the policy was delivered and the premium paid in Fall River in this State, and by its terms it was not to take effect until the premium was paid. If, as seems probable, it was a Massachusetts contract, the rights of the parties are to be determined by the laws of this Commonwealth. No exception was taken to the judge’s ruling on this point, and it does not appear that there was any difference of opinion between the parties at the trial in regard to it.

If it was a Maine contract, the defense of fraud of the insured in procuring it was open, and the instructions were sufficiently favorable to the defendant. As no evidence was introduced in regard to the laws of Maine, we assume that the common law there is the same as in Massachusetts.

If it was a Massachusetts contract the result would be the same, and if the quoted clause were to be held void, the provisions of the R. L. c. 118, § 21, would be applicable as they were given to the jury in the charge of the judge.

If it was a Maine contract and the R. L. c. 118, § 73, which requires a copy of the application to be annexed to the policy, was not applicable, this part of the instructions of the judge was correct. If it was a Massachusetts contract and the paper relied on by the defendant was a part of the application which could not be put in evidence because not annexed to the policy, the rulings at tjhe trial were too favorable to the defendant.

The question to the physician was rightly excluded. While he was an expert in matters pertaining to his profession, it does not appear that he was an expert in the business of insurance, so that he could tell in reference to different physical conditions, when a man would be insurable.

In no possible view of the law was the defendant prejudiced by any error at the trial.

Exceptions overruled.