Swift v. Massachusetts Mutual Life Insurance

Mullís, P. J.

The question whether the plaintiff misrepresented the state of health of her husband in an application for an insurance on his life, was one of fact, and should have been submitted to the jury. ,

Proof was given by the defendant tending to prove that he was in feeble health before entering and while in the army, and on two occasions after leaving it. But the plaintiff testified that she became acquainted with him in 1866, when they were married, and 'that, with the exception of lameness on two occasions, he enjoyed good health until his last sickness. His father testified to his good health up to the time of going into the army — with one exception, when it was found his lungs were affected — and to his good health subsequent to his return from the army. Two witnesses testified that he enjoyed good health during the time he was in the army.

If a disputed question of fact could be raised upon a trial, it surely was raised in 'this cáse. The question was one of fact, and should have been submitted to the jury.

The defendant charges the plaintiff with both misrepresentation and concealment as to scrofula being the cause of the death of Swift’s brother and sister.

The question put to the plaintiff was this: Have the parents, brothers or sisters of the party been afflicted with insanity, or with pulmonary, scrofulous, or any constitutional disease P Her answer was no. If this answer was proved to be untrue, the plaintiff was rightly nonsuited.

In. considering the question of the truth of this particular answer, plaintiff’s answers to other questions upon the same subject must be borne in mind. For if the answers to other questions informed defendant truly of the matters inquired into, the answer in question cannot be said to be untrue so as to avoid the policy. The question was put to the plaintiff to enable the company to know whether insanity, pulmonary, scrofulous, or other constitutional disease existed in the family of her husband.

If the answers conveyed to them the information that scrofula was a disease existing in the family, they had the information they needed to enable them to determine the propriety of taking the risk.

Plaintiff, in answer to a subsequent question, told them that her husband’s mother died of scrofula. And in answer to another question she told them that her husband’s sister died of disease of the blood.

It seems to me that when the fact was disclosed that the mother died of scrofula, and one of her daughters of disease of the blood, the existence of scrofula in the family was as clearly stated as if they had been told it was hereditary.

The question was not put to the plaintiff whether her husband had been afflicted with scrofula, and its existence in his system might well be inferred from the fate of his mother and sister.

But it was possible that the mother might be scrofulous, and yet a child be so little affected with it as not to exhibit any symptoms of it. But the examining surgeon says that, seeing by plaintiff’s answers that his mother died of scrofula, he inquired of Swift whether he had ever had the disease or any symptoms of it that he was aware of, and he said no. Because of this answer the doctor omitted to advise the company not to accept the risk.

The answer of Swift to the doctor was not a warranty, but it was a representation as to a most material fact, and it was untrue, if it is to be taken as a denial that he had had any symptoms of scrofula. The abscess in the groin which he had before the application for insurance was evidence of scrofula in his system.

But the answer was not an unqualified assertion that he had not had any symptoms of scrofula, but that “ he had not had ‘ as Tie was aware of.’” He was, of course, aware of the existence of the abscess, but he might not know that it was any evidence of scrofula. That was a question of skill which a non-professional man might not be able to answer.

It was for the jury to say whether Swift was aware that he was afflicted with scrofula, or whether he was acting in good faith when he told the doctor that he had had no symptoms of scrofula that he was aware of.

It is said that the answer to the question, as to the disease of which his brother died was " unknown,” was untrue. It is untrue if plaintiff is to be understood by the answer as saying that no person, not even a physician, knew of the cause of his death.

The plaintiff’s counsel says, that the meaning of the witness was that it was unknown to him, and that the use of the phrase " unknown ” was the work of defendant’s agent, who, as appears by the evidence of the plaintiff, used the word in lieu of the language used by the witness, that he did not know of what disease his brother died. The answer would bear either construction, and I think the jury should have been permitted to say which was the correct one.

The statement of Swift as to his health and the cause of his lameness at any time, except to the defendants or the physician, were incompetent and ought to have been excluded, and, in the abstract of the evidence I have given, I have excluded them. They were admissible for no purpose whatever, and their admission must reverse the judgment and require a new trial unless there is clear, uncontradicted evidence of some breach of a warranty that must be fatal to a^recovery.

While the question is not altogether free from doubt as to whether a breach of warranty is not proved, yet there are so many questions which should have been submitted to a jury, and they are so connected with those which tend to prove a breach of warranty, that the case should go back for another trial.

Judgment is reversed and a new trial ordered, costs to abide event.

Judgment accordingly.