De Guzzi v. Prudential Ins. Co. of America
| Decision Date | 11 October 1922 |
| Citation | 136 N.E. 617,242 Mass. 538 |
| Parties | DE GUZZI v. PRUDENTIAL INS. CO. OF AMERICA. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Supreme Judicial Court, Berkshire County.
Action by Frank De Guzzi against the Prudential Insurance Company of America on a life insurance policy, defended on the ground of misrepresentations in the application. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.John H. Mack and William F. Barrington, both of North Adams, for plaintiff.
Frank H. Cande and Frederick M. Myers, both of Pittsfield, for defendant.
This is an action of contract upon a policy of insurance issued by the defendant on the life of one Pasquale Lo Scerbo, ‘payable to the executors, administrators or assigns of the insured.’ The issuance and delivery of the policy, the receipt, and the sufficiency of proof of death and appointment of the beneficiary were admitted. The defendant's bill of exceptions sets forth all the material evidence.
At the close of the evidence the defendant requested the court to make the following rulings:
‘(1) That, upon all the evidence in this case, the plaintiff is not entitled to recover.’
‘(4) The consulting of a physician within the period of three years was a material fact, and the statement of the insured that he had not consulted a physician within that time was a material misrepresentation and vitiates the policy.
‘(5) If you find that Lo Scerbo made untrue answers to Dr. McGrath or in his application in material matters, necessarily knowing that they were untrue when he made them, the intention to deceive the insurer is implied as a material consequence of such act.’
‘(11) There is no evidence that the occupation of Lo Scerbo was that of night watchman at the Arnold Print Works at the date of said application, and the truth of this statement is a condition precedent to the company's liability, and you must therefore find a verdict for the defendant.’
The defendant also filed a written motion for a directed verdict at the close of the evidence. The motion was denied by the court, and the rulings requested were refused, except as covered by the charge. To the denial of the motion for a directed verdict and to the refusal of the court to give the rulings requested the defendant duly excepted.
The jury returned a verdict for the plaintiff in the full amount of the policy.
The contract of insurance contained the provision that:
‘This policy, together with the application, a copy of which is attached hereto, contains and constitutes the entire contract between the parties hereto, and all statements made by the insured shall in the absence of fraud be deemed representations and not warranties.’
The application signed by the insured contained the following provision:
‘I hereby declare that all the statements and answers to the above questions are complete and true, and I agree that the foregoing, together with this declaration, shall constitute the application and become a part of the contract of insurance hereby applied for, and it is further agreed that the policy herein applied for shall be accepted subject to the privileges and provisions therein contained, and said policy shall not take effect until the same shall be issued and delivered by the said company, and the first premium paid thereon in full, while my health, habits and occupation are the same as described in this application.’
R. L. c. 118, § 21, and St. 1907, c. 576, § 21, in force when the policy issued, now G. L. c. 175, § 186, read:
‘No oral or written misrepresentation or warranty 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 or warranty is made with actual intent to deceive or unless the matter misrepresented or made a warranty increased the risk of loss.’
The defendant contends that the statements of the insured in his application as to his health and occupation were not true in fact, were not true when the policy issued and the first premium was paid, and were misrepresentations which increased the risk of loss.
The application for the policy was made January 7, 1920, and the policy issued January 15, 1920. The insured sailed for Italy on a steamer leaving New York on February 7, 1920, and died on board that ship on February 16, 1920 of ‘pneumonia and diabetes.’ In his application for insurance he answered question:
He answered question:
He answered questions:
And
The presiding judge instructed the jury in respect to the answer of the...
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