Considine v. Metro. Life Ins. Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: LATHROP
• Citation: Considine v. Metro. Life Ins. Co., 165 Mass. 462, 43 N.E. 201 (Mass. 1896)
• Decision Date: 10 March 1896
• Parties: CONSIDINE v. METROPOLITAN LIFE INS. CO. DANGAN v. SAME.

165 Mass. 462

43 N.E. 201

CONSIDINE

v.METROPOLITAN LIFE INS. CO.

DANGAN

v.SAME.

Supreme Judicial Court of Massachusetts, Bristol.

March 10, 1896.

Exceptions from superior court, Bristol county; Edgar J. Sherman, Judge.

Two actions, one by Bridget Considine against the Metropolitan Life Insurance Company, and the other by one Dangan, administrator, etc., against the same defendant, on a life insurance policy. There was a verdict in each case directed by the court in favor of plaintiff, and defendant excepts. Exceptions overruled.J.W. Cummings, for plaintiffs.

Jennings & Morton, for defendant.

LATHROP, J.

1. The principal question, which is common to both these cases, is the construction to be given to the amendment made by St.1893, c. 434, § 1, to St.1887, c. 214, § 73, as amended by St.1892, c. 372. The section referred to of St.1887 related merely to the payment of premiums in fraud of creditors, and was intended to protect insurance companies paying policies without notice of the claims of creditors. The statute of 1892 amended this section by adding at the end the following words: “In any claim arising under a policy which has been issued in this commonwealth by any life insurance company, without any previous medical examination, or without the knowledge and consent of the insured, or, in case said insured be a minor, without the consent of the parent, guardian, or other person having legal custody of said minor, the statements made in the application as to the age, physical condition, and family history of the insured shall be held to be valid and binding upon the company: provided, however, that the company shall not be debarred from proving as a defence to such claim that said statements were wilfully false, fraudulent or misleading.” The section then makes it a criminal offense for any solicitor, agent, examining physician, or other person knowingly or willfully to make any false or fraudulent statement or representation in or with reference to any application for insurance. The statute of 1893 amends this section by adding after the word “misleading” the following words: “And provided, further, that every policy which contains a reference to the application of the insured, either as a part of the policy or as having any bearing thereon, must have attached thereto a correct copy of the application, and unless so attached the same shall not be considered a part of the policy or received in evidence. Each application for such policy shall have printed upon it in large bold faced type the following words: ‘Under the laws of Massachusetts, each applicant for a policy of insurance to be issued hereunder is entitled to be furnished with a copy of this application attached to any policy issued thereon.’ ” The defendant contends that the statute of 1893 applies only to the three kinds of policies before mentioned, namely, those issued without any previous medical examination, those issued without the knowledge and consent of the insured, and those issued to minors; and that, as the policies in question are not within these clauses, it is entitled to show that some of the answers in the applications were false, although the applications were not attached to the policies. While the general purpose of a proviso is to except the clause covered by it from the enacting clause, or to qualify the operation of the statute in some particular, it is often used in other senses. Thus, as it is said by Mr. Justice Field in Railroad Co. v. Smith, 128 U.S. 174, 9 Sup.Ct. 47: “It is a common practice in legislative proceedings, on the consideration of bills, for parties desirous of securing amendments to them to precede their proposed amendments with the term ‘provided,’ so as to declare that, notwithstanding existing provisions, the one thus expressed is to prevail, thus having no greater signification than would be attached to the conjunction ‘but’ or ‘and’ in the same place, and simply serving to separate or distinguish the different paragraphs or sentences.” While it is a general rule that a proviso is a limitation upon the general words preceding it, excepting and taking out something therefrom, this is not an absolute rule, and the meaning of the proviso must be ascertained from the language used. There are many cases in the Reports where a proviso has been held not to be limited to the section in which it is found, but to be applicable to other sections, and even to the entire act. Rex v. Threlkeld...