Barker v. Metro. Life Ins. Co.

• Decision Date: 05 July 1905
• Citation: 188 Mass. 542,74 N.E. 945
• Parties: BARKER v. METROPOLITAN LIFE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 542

74 N.E. 945

BARKER

v.METROPOLITAN LIFE INS. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

July 5, 1905.

Exceptions from Superior Court, Middlesex County; Wm. C. Wait, Judge.

Action by one Barker against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant excepts. Exceptions sustained.

J. J. Shaughnessy, for plaintiff.

Wm. M. Butler and Guy W. Cox, for defendant.

LATHROP, J.

This is an action of contract upon a policy of insurance in the sum of $500 upon the life of Blaney P. Barker, payable to his wife, the plaintiff in this action. At the trial in the superior court the jury returned a verdict for the plaintiff, and the case is before us on the defendant's exceptions.

The policy in question was issued on July 19, 1899. On its face it purports to be ‘in consideration of the answers and statements contained in the application for this policy a copy of which is hereto annexed as a part of this contract, * * * all of which answers and statements are hereby made warranties.’ The application, questions, and answers are on the third page of the policy, the answers being in writing and the rest in print. The policy is also made ‘subject to the conditions set forth on the third page hereof, each and all of which are made part of this contract and are accepted by the insured and assured as part hereof as fully as if herein recited.’ These conditions are printed. The policy on the face contains the following clause: ‘No obligation is assumed by the company until the first premium has been paid nor prior to this date, nor unless upon this date the assured is alive and in sound health.’

[188 Mass. 543]1. The first request for instructions is: ‘Upon all the evidence, the plaintiff cannot prevail, and the defendant is entitled to a verdict in its favor.’ It is contended by the defendant, in support of this proposition, that the insured had cystic disease of the kidneys at the time of the insurance, and that he died from that disease. The evidence is that at the time of the insurance, July 19, 1899, he appeared to be in good health; that on the 9th of the next month he was taken ill; that on the 24th of the same month, after a consultation with two physicians on the 14th, he was taken to the Framingham Hospital to be operated on; that the operation took place the same day, and one kidney was found covered and filled with cysts; that a radical operation was not deemed advisable, and only the large and superficial cysts were evacuated and the wound closed; that on August 30th pneumonia developed, and on September 4th he died. There was also evidence from experts that the condition of the kidney found on August 24th could not develop from a found condition in less time than several months; but there was evidence to the contrary, and this question was for the jury. Emerson v. Metropolitan Life Ins. Co., 185 Mass. 318, 320, 70 N. E. 200.

2. The second request for instructions was as follows: ‘If the insured, Blaney P. Barker, was not in sound health on the 19th day of July, 1899, the defendant is entitled to a verdict in its favor.’ The third request for instructions was as follows: ‘If on the 19th day of July, 1899, the insured, Blaney P. Barker, had cystic disease of the kidneys, or had cystic degeneration of the kidneys, or had tumors of the kidneys, he was not in sound health on that day, and the defendant is entitled to a verdict in its favor.’ The court refused to give these instructions. We are of opinion that these instructions should have been given (unless these requests were covered by the charge), as there was evidence in the case to sustain the allegations of fact contained in the requests. The judge dealt with these requests in this manner: ‘One term of that contract-the last clause of the first page of the printed policy-is that no obligation is assumed by the company until the first premium has been paid in prior to this date, nor unless upon this date the insured is alive and in sound health, this being dated the 19th day of July. So it is contended that it is necessary for the plaintiff, in order to recover, to show that Mr. Blaney P. Barker, on the 19th day of July, 1899, was in sound health; and I instruct you that you must be satisfied by a fair preponderance of the evidence that Blaney P. Barker, on the 19th day of July, 1899, was in the same condition of health that he was in on the day that he made his application and was examined; that that is the full extent to which this condition of the policy applies. In order to recover upon a contract which is itself made on condition, it is necessary that the condition should have been complied with; and so, here, it is one of the conditions of that policy, without which it has no effect whatsoever, that Mr. Barker, the assured, should be in sound health when the policy was delivered; but, inasmuch as the company, by its own act, has made the representation or warranty of Mr. Barker in regard to the soundness of his health a warranty in the policy, I hold that it is not a condition except so far as I have already stated to you; it was a condition of that policy, in effect, that Mr. Barker should have been in the same condition of sound health on the 19th day of July that he was on the day that he made his application and...