Cobb v. Covenant Mut. Ben. Ass'n

• Decision Date: 17 January 1891
• Citation: Cobb v. Covenant Mut. Ben. Ass'n, 153 Mass. 176, 26 N. E. 230 (Mass. 1891)
• Parties: COBB v. COVENANT MUT. BEN. ASS'N.
• Court: Supreme Judicial Court of Massachusetts

153 Mass. 176

26 N.E. 230

COBB

v.COVENANT MUT. BEN. ASS'N.

Supreme Judicial Court of Massachusetts, Bristol.

Jan. 17, 1891.

Report from superior court, Bristol county; HAMMOND, Judge.

Bill in equity to recover on certificate issued by defendant to Pliny M. Cobb, husband of the plaintiff. The defendant is an Illinois corporation. In the superior court the jury returned a verdict for defendant.

H.M. Knowlton, G.E. Williams, and E.M. Reed, for plaintiff.

A.E. Avery and W.C. Calkins, for defendant.

DEVENS, J.

By the terms of his application, which is referred to and made a part of the benefit certificate issued to the insured, he warranted the answers to the questions propounded “to be full, complete, and true,” and agreed that the answers and application should form the exclusive and only basis of the contract between himself and the defendant, and further agreed that, if “any misrepresentations or fraudulent or untrue answers” had been made, the contract should be null and void. The acknowledgment which was subscribed by the insured controls and governs the answers to which it refers, nor does it seem important to determine whether they are to be treated as warranties which are to be literally complied with or as representations only, as if they (the latter) were material to the risk, and were so made and treated by the parties. Where one asserts that certain statements are true, and that, if not true, this fact shall avoid the policy, the question whether they were actually material is not important, as parties have the right to make their truth the basis of the contract. Miles v. Insurance Co., 3 Gray, 580;Insurance Co. v. France, 91 U.S. 510;Powers v. Association, 50 Vt. 630;McCoy v. Insurance Co., 133 Mass. 82. The case at bar differs obviously from those in which an applicant has averred that the answers made by him are true according to his best knowledge and belief, or has limited his statement by other similar words. Such answers, if accepted by the insurer, would render it necessary for them to prove that, as thus limited, they were untrue. Clapp v. Association, 146 Mass. 529, 16 N.E.Rep. 433.

The sixth question in form A of the application was: “Have you personally consulted a physician, been prescribed for, or professionally treated within the past ten years?” To this question the insured answered, “No,” and it has been found by the jury, upon an issue submitted to them, that this answer was false. The plaintiff contended that such an issue should only be found against her in case the answer was intentionally false. In our view, the insured having made the truth of his statements the basis of his contract, it was sufficient for the defendant to show that this statement was actually untrue. The plaintiff further claimed that the question referred to in the application should be construed as referring to a specific disease, and that, if the insured had consulted or been prescribed for by a physician for a pain that did not amount to a disease, his answer to this question would not prevent the plaintiff from recovering. The presiding judge declined to instruct in accordance with this contention, and instructed the jury that if Cobb, the insured, being, as he supposed, in need of a physician, went to one for the purpose of consulting him as to what the matter was with him, had an interview, answering such inquiries as the physician deemed pertinent, receiving aid, advice, or assistance from him, Cobb “consulted” a physician, within the meaning of the interrogatory; and, further, that if they found that he went to a physician for the purpose of procuring aid and assistance from the physician as such, and the physician prescribed a remedy, or treated him professionally either by giving him a prescription or by administering hypodermic injections of morphine, of which there was some evidence, then he was professionally “treated,” within the meaning of the interrogatory, or professionally “prescribed for.” This ruling appears to us correct. While the question whether Cobb had a fixed disease, and what the disease was, might be an inquiry involved in considerable embarrassment, the question whether he had consulted a physician, or had been professionally treated by one, was simple, and one about which there could be no misunderstanding. Had it been replied to in the affirmative, the answer would have led to other inquiries. Indeed, the question which follows is, “If so, give dates, and for what disease.” It is upon the existence of this latter question that the plaintiff founds an argument that it was necessary to show that Cobb had some distinct disease permanently affecting his general health before it could be said that he answered this question untruthfully. But the scope of the question cannot be thus narrowed. Even if Cobb had only visited a physician from time to time for temporary disturbances, proceeding from accidental causes, the defendant had a right to know this, in order...