Fondi v. Boston Mutual Life Ins. Co.

• Decision Date: 15 May 1916
• Parties: GIUSEPPE FONDI v. BOSTON MUTUAL LIFE INSURANCE COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 6

GIUSEPPE FONDI v. BOSTON MUTUAL LIFE INSURANCE COMPANY.

Supreme Judicial Court of Massachusetts, Essex.

May 15, 1916

November 17, 1915.

Present: RUGG, C.

J., BRALEY, DE COURCY, CROSBY, & CARROLL, JJ.

Insurance, Life. Evidence, Presumptions and burden of proof, Best evidence Public records. Practice, Civil, Rulings and instructions Exceptions, Verdict.

In an action upon a policy of life insurance containing a provision which reads "Conditions. Provided, however, that no obligation is assumed by said Company prior to the date hereof, nor unless on said date the insured is alive, in sound health .," proof that on the date of the policy the insured was in sound health is a condition precedent to recovery, and the burden of proving compliance with that condition rests upon the plaintiff.

Proof of the performance of a condition precedent of a policy of life insurance is not affected by St. 1907, c. 576, Section 21, providing in substance that "No . . . warranty made in the negotiation of a . . . policy of insurance by the assured . . . shall be deemed material or defeat or avoid the policy . . . unless . . . made with actual intent to deceive or unless the matter . . . made a warranty increased the risk of loss."

An error of a judge presiding at the trial of an action upon a policy of life insurance, in instructing the jury that the burden of proof rested upon the defendant to show that the policy had been avoided by breach of a condition precedent that at its date the insured was in good health, is not cured by a further instruction that, if it appeared to the minds of the jury that the insured "was not in sound health at the time when the policy was taken out, then by the express terms of the policy there could be no recovery."

It is proper, at the trial of an action upon a policy of life insurance where a material issue is, whether the insured at the date of the policy was in sound health, to refuse to admit as evidence a copy of a card, the original of which had been destroyed, which was kept by the State board of health, not as a public record in the sense of R.L.c. 35,

Section 5, but as a part of the board's voluntary activities without legislative requirement, and which purported to state that a sample of sputum of the insured had been examined by the bacteriologist and found to be tuberculous, especially when it does not appear that the bacteriologist who made the test might not be called as a witness.

If a jury, in an action where the plaintiff is entitled to interest, return a verdict for the plaintiff in a certain sum "with interest," the presiding judge has power, before the verdict is recorded, to order the amount of the verdict to be amended by the addition of interest.

J. P. S. Mahoney, for the defendant. M. A. Sullivan, for the plaintiff.

RUGG, C.J. This is an action of contract whereby the plaintiff seeks to recover on two policies of insurance on the life of Edwardo Contestabile. Each policy contained among other conditions the following: "Conditions. Provided, however, that no obligation is assumed by said Company prior to the date hereof, nor unless on said date the insured is alive, in sound health. . . ." There was evidence tending to show that on the date of each policy the insured was not in sound health, but was suffering from tuberculosis. In this state of the evidence the jury were instructed that "The burden of proof in this case to show that this policy has been avoided by breach of the condition referred to rests upon the defendant. That is, unless he satisfies you by a fair preponderance of the evidence that the conditions of the policy are broken, then you should bring in a verdict for the plaintiff." Exception was saved to this instruction.

The instruction was erroneous. The correct principle of law was called to the attention of the presiding judge ^[*] by the defendant's requests for rulings, to the effect that, in order to recover, it was necessary for the plaintiff to show as to each policy by a fair preponderance of the evidence that on its date the insured was in sound health. When it is made a condition precedent to the taking effect of a policy of insurance as a binding contract, that the insured shall be in sound health on its date, then the burden of proving compliance with that condition rests on the plaintiff. Barker v. Metropolitan Life Ins. Co. 188 Mass. 542 547. Lee v. Prudential Life Ins. Co. 203 Mass. 299 , 301. Everson v. General Accident, Fire & Life Assurance Corp. Ltd. 202 Mass. 169 , 172, 173. Proof of performance of a condition...