Hogan v. Metropolitan Ins. Co.

• Decision Date: 18 October 1895
• Citation: 164 Mass. 448,41 N.E. 663
• Parties: HOGAN v. METROPOLITAN INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 448

41 N.E. 663

HOGAN v. METROPOLITAN INS. CO.

Supreme Judicial Court of Massachusetts, Hampden.

October 18, 1895

COUNSEL

J.B Carroll and W.H. McClintock, for plaintiff.

E.H Lathrop, for defendant.

OPINION

KNOWLTON J.

The defendant set up in its answer that the assured, in his application, which was a part of the contract of insurance in reply to the question, "Has the life proposed now, or ever had, disease of the kidneys?" answered "No," and that this answer was guarantied by the assured to be true, when in fact it was false. Upon the issue thus presented, the plaintiff introduced the testimony of witnesses tending to show that the answer was true. The defendant objected and excepted to the introduction of the testimony, on the ground that in the proofs of death furnished in accordance with the requirements of the policy and signed by the plaintiff, were this question and answer: "What sicknesses, previous to the last one, did the deceased have? Give particulars of each sickness, with dates." "Kidney trouble, two years ago." The defendant contended that, by this answer in the proofs of death, the plaintiff was estopped to show that the deceased did not have kidney disease at the time of making the application, which was less than two years before the proofs were filed. Its counsel relies on Campbell v. Insurance Co., 10 Allen, 213, in which it is said that corrections of mistakes in proofs of death "are not for the first time to be made known to the insurers at the trial of the action to recover for the loss, by the introduction of evidence showing that the statements filed were not true in a material fact, which, if it existed as stated, was fatal to the right of the insured to recover." This case has not been generally followed in other jurisdictions. McMaster v. Insurance Co., 55 N.Y. 222; Parmelee v. Insurance Co., 54 N.Y. 193; Insurance Co. v. Lodel, 95 U.S. 232; Waldeck v. Insurance Co., 53 Wis. 129, 10 N.W. 88; Bentz v. Association, 40 Minn. 202, 41 N.W. 1037; Smiley v. Insurance Co., 14 W.Va. 33. In this commonwealth it has never been treated as enunciating a doctrine of universal application, nor extended to facts differing from its own. Cluff v. Insurance Co., 99 Mass. 317; City Five Cents Sav. Bank v. Penn Fire Ins. Co., 122 Mass. 165; Little v. Insurance Co., 123 Mass. 380. But, if it is given full effect as an authority, the plaintiff was rightly permitted to introduce her testimony. In the first place, if the answer given in the proofs is true, it cannot be said, as matter of law, that the answer in the application is untrue. It is conceivable that there might have been a "kidney trouble," from accident or from some other temporary cause, such as to produce sickness, when it could not properly be said that there was "disease of the kidneys."

Even if the assured had had disease of the kidneys, and his answer was therefore untrue, it does not necessarily defeat the action upon the policy. If we treat the statements...