Dolan v. Mutual Reserve Fund Life Ass'n

• Decision Date: 04 April 1899
• Citation: 53 N.E. 398,173 Mass. 197
• Parties: DOLAN v. MUTUAL RESERVE FUND LIFE ASS'N.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

173 Mass. 197

53 N.E. 398

DOLAN v. MUTUAL RESERVE FUND LIFE ASS'N.

Supreme Judicial Court of Massachusetts, Worcester.

April 4, 1899

COUNSEL

Henry M. King and Chas M. Rice, for plaintiff.

Moulton Loring & Loring, for defendant.

OPINION

KNOWLTON J.

The plaintiff seeks to recover under a policy of life insurance on the assessment plan issued by a foreign corporation on the life of her husband, Farrell Dolan, for her benefit. The date of the policy is October 5, 1894. An important question is whether St.1894, c. 522, § 21, is applicable to this policy. This section is a re-enactment of previous legislation which provides that "no oral or written misrepresentation made in the negotiation of a policy of insurance by the assured or in his behalf shall be deemed material, or defeat or avoid the policy, or prevent its attaching, unless such misrepresentation is made with actual intent to deceive, or unless the matters misrepresented increased the risk of loss." It is settled that the term "misrepresentation" includes representations made in such form as to constitute warranties. Levie v Insurance Co., 163 Mass. 117, 39 N.E. 792; White v. Association, 163 Mass. 108, 39 N.E. 771; Hogan v. Insurance Co., 164 Mass. 448, 41 N.E. 663. It is also settled that since the enactment of St.1890, c. 421, § 27, this provision applies to contracts of insurance on the assessment plan. Stocker v. Association, 170 Mass. 224, 49 N.E. 116. Although the defendant is a foreign corporation, it does business in this commonwealth, under our laws, and is subject to this provision, as if it were a domestic corporation. Under St.1894, c. 522, §§ 77, 78, it could do business here only through constituted agents, resident in this state. Its contracts are "subject to all general laws now or hereafter in force relative to the duties, obligations, prohibitions and penalties of insurance companies, and subject to all laws applicable to the transaction of such business by foreign insurance companies and their agents." By section 78, and under similar previous legislation, it is obliged "to obtain from the insurance commissioner a certificate that it has complied with the laws of the commonwealth and is authorized to make contracts of insurance." The exhibits show that it obtained such a certificate in 1885, and has ever since been acting under its authority. The contract was made in Massachusetts, through its agent here, and the policy was delivered and paid for here. It is therefore governed by our laws. The provision on the back of the policy, that "the contract shall be governed by, and construed only according to the laws of the state of New York," does not affect the rights of the parties. In the first place, where parties are contracting in this commonwealth in regard to a matter which under their contract plainly would be governed by the laws of this state, enacted on grounds of public policy, it is at least doubtful whether they can be permitted to nullify those laws, in their application to their contract, by a stipulation that the contract shall be governed by the laws of another state. See The Brantford City, 29 F. 373-396; The Iowa, 50 F. 561; The Hugo, 57 F. 403-411. However that may be, St.1894, c. 522, § 73, prohibits insurance companies contracting insurance under this act from issuing "any policy to a resident of this commonwealth which does not bear in bold letters upon its face a plain description of the policy, so fully defining its character, including dividend periods and other peculiarities, that the holder thereof shall not be liable to mistake the nature or scope of the contract." The effect of this is to make it impossible to change the whole character of a contract of insurance by a stipulation on the back of the policy. The same section provides that an application cannot be used to affect a contract of insurance, even though referred to as a part of the contract, unless a correct copy of it is attached to the policy. We are therefore of opinion that the representations relied on by the defendant, whether in the form of warranties or not, are immaterial in this suit, unless they were made with actual intent to deceive, or unless the matter represented increased the risk of loss. The jury were instructed to this effect, and they found the facts in favor of the plaintiff.

The eleventh request for an instruction, in regard to the presumption, from the falsity of a statement, that there was an intent to deceive, was rightly refused.

The exceptions to the refusal to give the other instructions requested, and to the instructions given, are governed by what we have said, except the request in regard to the representation about the age of the insured. We are of opinion that the jury should have been instructed, as requested by the defendant, that "an understatement of age increases the risk of loss in a life insurance contract as a matter of law." The jury were permitted to find, as a matter of fact, that such a misstatement did not increase the risk, and to return a verdict for the plaintiff on that ground. It seems clear that death is likely to come more quickly to a person of a given age in sound health than if he were considerably younger, all other conditions being the same. It may be that in an insurance for a short term, or upon an endowment policy, the rule is not applicable to persons of every age, and in all conceivable conditions; but, upon a policy for life, we think it should be held, as matter of law, that a material increase of age increases the risk. See Brown v. Association, 172 Mass. 498, 53 N.E. 129; Rainger v. Association, 167 Mass. 109, 44 N.E. 1088. The error in the instructions in this particular would entitle the defendant to a new trial, except for the answers of the jury to the questions put by the presiding judge when they returned their verdict. The foreman was asked questions, and he made answers, as follows: "Q. On the question of age, did you find any false statement made by the deceased? A. I think there was some doubt about that with some of the jury, but we had no doubt that there was no intent to defraud. Q. That is not exactly an answer to my question. Did you find the age untruly stated, or that he stated it rightly? A. It was the opinion of the jury, as to the age, as I have said, that there was not intent to defraud the insurance company; and the jury did not consider that there was testimony that proved he stated his age falsely. Q. Then, I understand, you did not find, as matter of fact, that he made any false statement as to his age? A. We did not." Neither of the counsel was present. Taking these answers literally, we think they must be treated as a finding that no false statement in regard to age was proved. At the same time, inasmuch as the jury did not formally consider the questions, and inasmuch as the foreman, in each of his two answers containing affirmations, emphasized the want of an...