Kidder v. Supreme Commandery United Order of Golden Cross
Decision Date | 20 June 1906 |
Citation | 78 N.E. 469,192 Mass. 326 |
Parties | KIDDER v. SUPREME COMMANDERY UNITED ORDER OF GOLDEN CROSS. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Coggan & Coggan and G. L. Dillaway, for plaintiff.
W. H Powers and H. H. Folsom, for defendant.
The questions presented by these exceptions may be taken up in the order in which they appear in the record. Among the most important is the refusal to give five requests for rulings that as matter of law the answer of the insured in her application which forms a part of the contract having been untrue, and the representations being material, the certificate of insurance either never attached, or was voidable at the election of the defendant. Under St. 1894, p 684, c. 522, § 21, St. 1895, p. 272, c. 271 now Rev. Laws, c. 118, § 21, which has been held to include fraternal beneficary corporations, unless such misrepresentations were made with an actual intent to deceive, and the subject misrepresented increased the risk they were deemed to be ineffectual either to prevent the policies from attaching, or to avoid them. Stocker v. Boston Mutual Life Association, 170 Mass. 224, 49 N.E. 116. By St. 1901, p. 349, c. 422, § 27, now Rev. Laws, c. 119, § 22, under which the certificate in suit was issued, while this provision was made inapplicable to such insurance the doctrine of the common law was not changed, for the original statute as amended was only declaratory as to misrepresentations, and did not formulate a new rule except as to warranties. Daniels v. Hudson River Fire Insurance Co., 12 Cush. 416, 425, 59 Am. Dec. 192; White v. Provident Savings Life Assurance Society of New York, 163 Mass. 108, 115, 39 N.E. 771, 27 L. R. A. 398. See Campbell v. New England Mutual Life Insurance Co., 98 Mass. 381, 401. When considering and answering the questions involving her past and present condition of bodily health, it may be said that the insured must be presumed to have been cognizant of her physical history within the period to which the inquiries were confined, and also to have known if she had consulted, or been treated by a physician. Yet if these answers were in the negative they are not made warranties, but being representations only they would not defeat the contract unless intentionally false, and material to the risk. Daniels v. Hudson River Fire Ins. Co., ubi supra. Their falsity must be found, if at all, in the extrinsic evidence, which substantially came from the physician whom she consulted, and subsequently employed, and the medical examiner of the defendant, who after an examination, approved the application, and accepted her as an insurable risk. During the year preceding the application, the insured consulted a physician, and also is shown to have received medical advice and treatment for slight ailments in connection with her general health, the condition of which had caused her being confined to her bed, for a few days, but whether these ills should be deemed occasional, or classed as protracted in character depended upon inferences to be drawn from the evidence. In degree their difference is apparently so marked that the jury would be justified in finding that the applicant truthfully declared, she had not suffered from any prolonged sickness, and the representations that her health was perfect, and that no material facts bearing upon the subject had been suppressed could be found to rest upon her experience of a complete recovery from the attacks of temporary sickness, and also in her reliance upon competent medical opinion that she was not suffering from any organic disease. If from the testimony of the family physician it could be said that she formerly had believed a serious physical trouble existed, yet it also appears that from his diagnosis this belief was groundless, and that she accepted and acted upon his opinion. Besides this question was framed to cover actual, not imaginary diseases the supposed presence of which until the sufferer is disabused of such belief by competent medical advice is not uncommon. Where, however, an applicant has suffered from a disease so grave in its nature that generally it is recognized as having a tendency to shorten life, and fails to disclose the fact in answer to a question which calls for such information, it may be ruled as matter of law that as the risk is thus increased the policy is void. Brown v. Greenfield Life Association, 172 Mass. 498, 53 N.E. 129; Rainger v. Boston Mutual Life Association, 167 Mass. 109, 44 N.E. 1088. So a misstatement as to age if there is a material increase of years subsequently shown has the same effect. Dolan v. Mutual Reserve Fund Life Association, 173 Mass. 197, 200, 53 N.E. 398. But where the insurer in reply to a question calling for the fact has not been informed of a disease which although serious may not have this tendency, it is for the jury to say if the risk has been increased. Hogan v. Metropolitan Life Ins. Co., 164 Mass. 448, 41 N.E. 663; Levie v. Metropolitan Life Ins. Co., 163 Mass. 117, 39 N.E. 792; White v. Provident Savings Life Association Society, ubi supra. Within the last category also falls the answers to the questions relating to the consulting of physicians, or of treatment by them. The obtaining of medical advice or treatment under some circumstances may be indicative of such impairment of health as to make the patient an undesirable risk, or such acts may be only for the object of obtaining relief for common though not incurable complaints which do not result in any permanent physical derangement. It was for the jury to find under suitable instructions whether the incorrect answers to these questions were material, or intentionally false. White v. Provident Savings Life Association Society, ubi supra.
There was a further inquiry in reference to her occupation which seems to have been that of a housewife, and here it also could have been determined that in so far as such a question was applicable her usual calling had not been interrupted in the sense that by reason of long continued or severe sickness she had been rendered incapable of supervision of the household, or incapacitated from resuming her ordinary labor. These requests, therefore, were rightly refused, and the instructions given fully and accurately stated at law.
The second exception is to a refusal to rule that if during the life of the decedent the defendant rescinded the contract and expelled or disconnected her from the order, it became her duty if she desired to continue a member to exhaust by an appeal the exclusive remedies provided by its constitution and general laws for reinstatement. By accepting the application, issuing the insurance certificate, and recognizing her as a member by receiving dues and assessments, the defendant became bound on the face of the contract at her death to pay to the plaintiff as beneficiary the benefit provided by its terms. Com. v. Wetherbee, 105 Mass. 149, 160; Wuerfler v. Trustees of Grand Grove of Historical Order of Druids, 116 Wis. 19, 92 N.W. 433, 96 Am. St. Rep. 940. While this contract contained no provision for...
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