Giannelli v. Metro. Life Ins. Co.

• Decision Date: 17 September 1940
• Citation: 29 N.E.2d 124,307 Mass. 18
• Parties: GIANNELLI v. METROPOLITAN LIFE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

307 Mass. 18

29 N.E.2d 124

GIANNELLI

v.METROPOLITAN LIFE INS. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

Sept. 17, 1940.

Exceptions from Superior Court, Middlesex County; Beaudreau, Judge.

Action on a life policy by Jennie Giannelli against the Metropolitan Life Insurance Company. Verdict for the plaintiff for $5,676.43, and the defendant brings exceptions.

Exceptions sustained.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, and QUA, JJ.

A. C. Walton and A. J. McNulty, both of Boston, for plaintiff.

D. E. Murphy, of Boston, for defendant.

LUMMUS, Justice.

This is an action of contract by the beneficiary under a policy of life insurance for $5,000, issued by the defendant on September 17, 1936, to an unmarried medical student then nearly twenty-four years old. He died on January 16, 1937, of heart disease caused by hypertension of the arteries. Section 4 of the ‘Provisions and Benefits' in the policy is as follows: ‘Entire Contract:-This Policy and the application therefor, a copy of which is attached hereto as a part thereof, constitute the entire contract between the parties, and all statements made by the Insured shall, in the absence of fraud, be deemed representations and not warranties, and no statement shall avoid this policy or be used in defense of a claim hereunder unless it be contained in the application therefor.’ The insured signed the following, which appeared at the bottom of Part A of the application: ‘It is understood and agreed: 1. That the following statements and answers are correct and wholly true, and, together with the answers to questions on Part B hereof [which with Part A comprised the whole application], they shall form the basis of the contract of insurance, if one be issued.’ The defence is based upon allegations of misrepresentations in answers by the insured to questions contained in Part B of the application. The plaintiff got a verdict. The defendant, on its exceptions, argues (1) that the judge who ordered an officer of the defendant to answer certain interrogatories erred in so doing, and that the judge who presided at the trial erred in allowing the answers to those interrogatories to be read in evidence, (2) that a verdict in favor of the defendant should have been directed, and (3) that certain instructions requested by he defendant should have been given.

By the first bill of exceptions the defendant assails an order requiring an officer of the defendant to answer interrogatories as to the findings reported to the defendant by a physician named MacDonald who was employed by the defendant pursuant to G.L.(Ter.Ed.) c. 175, § 123, to make a physical examination of the insured on September 13, 1936, shortly before the policy was issued. The essence of those findings was that the insured had a normal blood pressure. The ground of the exception is, that interrogatories to a corporate officer can require the disclosure of only such facts as are within the personal knowledge either of that officer or of ‘agents, servants and attorneys' of the defendant, G.L.(Ter.Ed.) c. 231, §§ 62, 65. Warren v. Decoste, 269 Mass. 415, 169 N.E. 505;Gunn v. New York, New Haven & Hartford Railroad, 171 Mass. 417, 420, 421, 50 N.E. 1031, and that the physician is not an ‘attorney’ and is neither ‘agent’ nor ‘servant.’

Clearly he is not a servant. O'Brien v. Cunard Steamship Co., 154 Mass. 272, 276, 28 N.E. 266,13 L.R.A. 329;Pearl v. West End Street Railway, 176 Mass. 177, 179, 57 N.E. 339,49 L.R.A. 826, 79 Am.St.Rep. 302;Roosen v. Peter Bent Brigham Hospital, 235 Mass. 66, 74, 126 N.E. 392, 14 A.L.R. 563;McMurdo v. Getter, 298 Mass. 363, 368, 10 N.E.2d 139. In his examination he was not subject to any control of his physical acts or his mental operations by the defendant. But one may be an agent without being a servant. Am.Law Inst.Restatement, Agency, §§ 1, 2 220(1), Comment c. For example, a salesman operating his own automobile on the business of his employer has been held not to be a servant as to the physical act of operation. Khoury v. Edison Electric Illuminating Co., 265 Mass. 236, 164 N.E. 77, 60 A.L.R. 1159, and note; Hardaker's Case, 274 Mass. 7, 174 N.E. 210;Child's Case, 274 Mass. 97, 174 N.E. 211;Wescott v. Henshaw Motor Co., 275 Mass. 82, 87, 175 N.E. 153;Manley's Case, 280 Mass. 331, 182 N.E. 486. Compare Singer Mfg. Co. v. Rahn, 132 U.S. 518, 10 S.Ct. 175, 33 L.Ed. 440;Still v. Union Circulation Co., 2 Cir., 101 F.2d 11, 13.

A medical examiner for an insurance company, like the physician in this case, is an agent of the company at least in receiving the answers of the applicant to the questions contained in the application, and in transmitting them with his report of his examination to the company. Masonic Life Association of Western New York v. Robinson, 149 Ky. 80, 147 S.W. 882, 41 L.R.A.,N.S., 505, and note; Sternaman v. Metropolitan Life Ins. Co., 170 N.Y. 13, 25,62 N.E. 763, 57 L.R.A. 318, 88 Am.St.Rep. 625; Lyon v. United Moderns, 148 Cal. 470, 475, 476, 83 P. 804, 4 L.R.A.,N.S., 247, 113 Am.St.Rep. 291,7 Ann.Cas. 672;Old Colony Life Ins. Co. v. Julian, 175 Ark. 359, 299 S.W. 366;Metropolitan Life Ins. Co. v. Hart, 162 Va. 88, 173 S.E. 769;Hale v. Sovereign Camp Woodmen of the World, 143 Tenn. 555, 226 S.W. 1045. In Woodburn v. Standard Forgings Corp., 7 Cir., 112 F.2d 271, a medical examiner for the defendant corporation was held its agent for the purpose of making representations to its employee as to his injury, which misled him into suffering his right to compensation to become barred by a statute of limitations. The physician in the present case was an ‘agent’ within the statute, and the facts shown by his report were properly ordered disclosed. Anderson v. Bank of British Columbia, 2 Ch. D. 644; Hall v. London & North-Western Railway, 35 L.T.,N.S., 848; Alliott v. Smith, [1895] 2 Ch. 111; County Council of Kerry v. Liverpool Salvage Association, [1905] 2 I.R. 38.

If the physician has ceased to be an agent for the defendant, that makes no difference. Although an interrogated officer may not be required to make inquiry of agents who are no longer in the employ of the corporation (Gunn v. New York, New Haven & Hartford Railroad, 171 Mass. 417, 420, 50 N.E. 1031), here inquiry has already been made and the information placed on file with the corporation in the form of a report by the physician of facts observed by him. This meets the general test that the facts must be such that the agent could be required to testify to them. Warren v. Decoste, 269 Mass. 415, 417, 418, 169 N.E. 505. There was no error in requiring answers to the interrogatories. A fortiori, there was no error in admitting the answers in evidence.

We consider now the exceptions taken at the trial. G.L.(Ter.Ed.))) ) c. 175, § 186, provides: ‘No oral or written misrepresentation or warranty made in the negotiation of a policy of insurance by the insured or in his behalf shall be deemed material or defeat or avoid the policy or prevent its attaching unless such misrepresentation or warranty is made with actual intent to deceive, or unless the matter misrepresented or made a warranty increased the risk of loss.’ Even though put in the form of a warranty, a representation contained in the application or in the policy itself, falls within the statute. White v. Provident Savings Life Assurance Society, 163 Mass. 108, 39 N.E. 771,27 L.R.A. 398;Barker v. Metropolitan Life Ins. Co., 198 Mass. 375, 383, 384, 84 N.E. 490;Everson v. General Accident, Fire & Life Assurance Corp., Ltd., of Perth, Scotland, 202 Mass. 169, 88 N.E. 658;Bolta Rubber Co., Inc. v. Lowell Trucking Corp., Mass., 23 N.E.2d 873. Only conditions, as distinguished from representations and warranties, lie outside the statute. Kravit v. United States Casualty Co., 278 Mass. 178, 179 N.E. 399;Faris v. Travelers' Indemnity Co., 278 Mass. 204, 179 N.E. 605;Lopardi v. John Hancock Mutual Life Ins. Co., 289 Mass. 492, 194 N.E. 706. In the present case, we have representations only, and neither warranties nor conditions. Under the statute, any misrepresentation in this case is ineffective to defeat or avoid the policy unless the...