Carrigan v. Massachusetts Benefit Ass'n

Butler, J.

When this case was previously tried this application was produced, as it is now, for the purpose of proving fraud. I said then it was not necessary to consider (in the view I took of the law) whether the statute is in any case applicable to the trial of a cause in this court. I intimated no opinion or impression respecting it. Since that time this question has been decided, not upon this statute, hut upon a similar statute, in New York. The statute is held to be applicable to trial in this court.

The decision of that question, however, now, as it then was, is unnecessary, because the statute, in the judgment of the court, is inapplicable to a case such as this. To my mind, it is plain that the purpose of this statute was to exclude the application where it is not attached to the policy, bat is sought to be made a part of the contract, so as to qualify or affect the terms of the policy. It is inapplicable to a case where the purpose is to show, as here, that there was no application made by the insured; that the company was deceived and imposed upon, in the presentation of a paper purporting to be the application of the individual insured, when it was not. No such case was contemplated by the legislature, or there would have been provision to protect a party, under such circumstances, against the use of the application. How could the fraud alleged here, if it exists, bo set up in the absence of the paper? Suppose the defendants had undertaken to show, in the absence of the paper, that it was a forgery, by calling witnesses who swear they had seen it and knew the handwriting of this girl, and that the signature is not hers? We could not receive it, — the paper must be present and the jury must see it.

McKennan, J.

The act of assembly says that an application made and not attached to the policy shall not be used in any way to qualify the terms of the contract. But the application is the foundation of the policy, — it rests upon it, — and can it not be shown that the company was qjroeured to issue this policy by the execution of a fraudulent application? It strikes at the obligation of the policy itself. It is not to be regarded as touching the construction of the paper itself, but as to the subsistence of the policy as an instrument binding the company. That seems to be a common-sense construction of the act of assembly.

The application having been admitted in evidence, the defendant’s counsel, in view of the admission made by plaintiff that Mary Mc-Caffrey did not herself sign the application, here requested the court to charge the jury, without going further into the evidence, that, as a matter of law, the plaintiff could not recover if the application were signed in the manner set forth in the admission.