Clapp v. Massachusetts Benefit Ass'n

• Decision Date: 06 April 1888
• Citation: Clapp v. Massachusetts Benefit Ass'n, 146 Mass. 519, 16 N. E. 433 (Mass. 1888)
• Parties: CLAPP v. MASSACHUSETTS BENEFIT ASS'N.
• Court: Supreme Judicial Court of Massachusetts

146 Mass. 519

16 N.E. 433

CLAPP v. MASSACHUSETTS BENEFIT ASS'N.

Supreme Judicial Court of Massachusetts, Suffolk.

April 6, 1888

COUNSEL

Edward Avery and Albert E. Avery, for defendant.

The defendant claims that the questions and answers contained in the application, which, by the terms of the condition, enter into and form a part of the contract itself, are warranties. Daniels v. Insurance Co., 12 Cush. 423; Miles v Insurance Co., 3 Gray, 580; Campbell v. Insurance Co., 98 Mass. 389; McCoy v. Insurance Co., 133 Mass. 82. If it be the opinion of this court that the application does not form a part of the contract itself, and therefore that the answers to the questions contained therein are not warranties, to be strictly and literally true, but are mere representations, as to which substantial truth in everything material to the risk is all that is required of the applicant, (Insurance Co. v Raddin, 120 U.S. 189, 7 S.Ct. 500,) then the defendant claims that the questions and answers contained in this application were material to the insurers, to enable them to estimate the risk to be assumed, and that, if the answers in any respect were materially untrue, they avoided the policy even if they were made ignorantly and in good faith. The rule of law is well settled, not only in this commonwealth, but in England, that if, as to matters material to the risk, some of the answers and statements are untrue in fact, no contract is thereby made, and the policy or certificate is void ab initio. The court erred in refusing to give the first, second, third, fourth, fifth, and sixth requests for ruling asked for, in writing, by the defendant. Curry v. Insurance Co., 10 Pick. 535; Wilbur v. Insurance Co., 10 Cush. 446; Kimball v. Insurance Co., 9 Allen, 540; Towne v. Insurance Co., 7 Allen, 51; Davenport v. Insurance Co., 6 Cush. 341; Miles v. Insurance Co., 3 Gray, 580; Vose v. Insurance Co., 6 Cush. 49; Campbell v. Insurance Co., 98 Mass. 381, and cases cited; McCoy v. Insurance Co., 133 Mass. 82; Ryan v. Insurance Co., 41 Conn. 168; Richardson v. Insurance Co., 46 Me. 394; Jeffries v. Insurance Co., 22 Wall. 47; Moulor v. Insurance Co., 111 U.S. 335, 4 S.Ct. 466; Insurance Co. v. Fletcher, 117 U.S. 519, 6 S.Ct. 837; Insurance Co. v. Raddin, 120 U.S. 183, 7 S.Ct. 500; Britton v. Insurance Co., 3 Thomp. & C. 220, 442; Edington v. Insurance Co., 100 N.Y. 536, 3 N.E. 315. The application and policy in this suit are substantially the same, so far as the questions involved are concerned, as the application and policy referred to in McCoy v. Insurance Co., supra. This case is not affected by Pub.St. c. 119, §§ 138, 181. Pub.St. c. 115, § 10; Ring v. Assurance Co., 145 Mass. 426, 14 N.E. 525. The plaintiff made out a prima facie case by putting in the certificate of membership, or policy, and proofs of death. The defendant met this by proving that the statements and declarations made in the application, which was made part of the policy, or certificate, were not in all respects true, but were in fact untrue. The plaintiff offered no evidence to control this. The evidence there presented was legally insufficient to establish the plaintiff's claim, and the court should have ordered a verdict for the defendant. Carter v. Goff, 141 Mass. 123, 5 N.E. 471; Brightman v. Eddy, 97 Mass. 478.

Robert M. Morse, Jr., and W.M. Richardson, for plaintiff.

The testimony of Mrs. Clapp as to her husband's apparent condition of health and strength in February, 1885, when he applied for membership in the defendant's association, was properly admitted. The inquiry did not call for a medical opinion, but for a statement of such facts as were within the personal knowledge of the witness. Com. v. Sturtivant, 117 Mass. 122; Com. v. O'Brien, 134 Mass. 198; Com. v. Brayman, 136 Mass. 438. An application for a policy of insurance, upon the basis of which the policy is issued, is to be considered a part of the contract between the parties the same as if the application had been embodied in the policy itself. When the provisions of the policy and of the application are inconsistent with each other, or ambiguous, that construction shall be had which is most favorable to the insured. Bank v. Insurance Co., 95 U.S. 673; Moulor v. Insurance Co., 111 U.S. 335, 4 S.Ct. 466. Statements contained in the application are to be considered representations rather than warranties, unless clearly made warranties by the express agreements of the parties. Daniels v. Insurance Co., 12 Cush. 416; Insurance Co. v. Raddin, 120 U.S. 183, 7 S.Ct. 500. When, in an application for insurance, the applicant states that his answers to any of the questions are upon his best knowledge and belief, such statements are representations merely, and not warranties; and such answers, if proved untrue, but yet made honestly, in good faith, to the applicant's best knowledge and belief, and with no reason to believe to the contrary, will not thereby affect the risk. Insurance Co. v. Gridley, 100 U.S. 614; Elliot v. Insurance Co., 13 Gray, 139; Moulor v. Insurance Co., 111 U.S. 335, 4 S.Ct. 466. The clause in Mr. Clapp's application, that he warranted "each and all the foregoing particulars and statements to be true to the best of my knowledge and belief," was in law a representation, and not a warranty; and the presiding judge correctly ruled that, in order to maintain its defense, it was necessary for the defendant to prove, not only that some one of the statements relied upon was untrue in fact, but that it was untrue to the best of the knowledge and belief of Mr. Clapp when he made it. The burden of proof was upon the defendant to prove that these representations were false to the best of Mr. Clapp's knowledge and belief. Campbell v. Insurance Co., 98 Mass. 381. Whether any of these representations were false was a question of fact for the jury, and the court properly declined to rule upon them as matters of law. Houghton v. Insurance Co., 8 Metc. 114; Campbell v. Insurance Co., supra; Insurance Co. v. Bank, 122 U.S. 501, 7 S.Ct. 1221. It should not be inferred that the insured took the policy with the understanding that it should be void if at any time in the past he was, whether conscious of the fact or not, afflicted with the diseases, or any of them, specified in the question propounded by the company. Insurance Co. v. Foley, 105 U.S. 350; Moulor v. Insurance Co., 111 U.S. 335, 4 S.Ct. 466; Insurance Co. v. Bank, 122 U.S. 501, 7 S.Ct. 1221.

OPINION

DEVENS J.

The certificate, or policy, on which the plaintiff relies was issued on the condition, "first, that the statements and declarations made by and on behalf of said member in his application to become a benefit member of said association, which are hereby referred to as the basis of this contract, and are a part thereof, and on the faith of which this certificate is issued, are in all respects true, and that no fact has been suppressed relating to his health or circumstances affecting the interests of said association, or their inducement to accept the risk." The application must thus be treated as a part of the contract, as if it had been incorporated in, and thus in terms been made a part thereof. Whether the statements in the application, claimed by the defendant to be erroneous, are to be treated as warranties which enter into, and define by way of stipulation, description, or otherwise, the precise limits of the obligation which the insurers intended, and which must be literally complied with, whether material or immaterial, so far as can be seen, to the risk, or whether they are representations to be substantially complied with, so far as material to the risk,--which is often an inquiry of delicacy,--does not seem to be of importance in the case at bar. If representations only, they are clearly seen to relate to matters material to the risk, and there was much evidence that they were not in fact correct. The seven rulings requested by the defendant are based upon the theory that it was entitled to a verdict if the answers of Clapp in reference to such matters were in fact untrue, although made honestly and in good faith. Whether it was so entitled or not must depend upon the construction to be given to the acknowledgment, or certificate, which was subscribed by the deceased as a part of the application, and which, from its language, must be held to have controlled and governed the answers to which it referred. This acknowledgment, as it is termed, was as follows:

"I, Edward A. Clapp, of W. Manchester, county of Essex, state of Mass., do hereby warrant each and all the foregoing particulars and statements to be true, to the best of my knowledge and belief, and that I have not, in this application for above-named contract, concealed or withheld any material circumstance or information concerning the past or present state of my health or habits of life; and I do hereby acknowledge, consent, and agree that any untrue or fraudulent statement made above by me or any one else, or to any medical examiner of said Massachusetts Benefit Association, or any concealment of facts by me or any one else, may forfeit and cancel all rights to any benefit under the above-named contract.

"Dated at Boston, State of Mass., this 6th day of March, 1885.

"EDWARD A. CLAPP, Applicant."

The presiding judge ruled that the matter to be passed upon by the jury was "whether or not the deceased acted in good faith in making his answers to the questions that were contained in the application, because if, in his answers to the...