Levie v. Metropolitan Life Ins. Co.

• Decision Date: 28 February 1895
• Citation: Levie v. Metropolitan Life Ins. Co., 163 Mass. 117, 39 N.E. 792 (Mass. 1895)
• Parties: LEVIE v. METROPOLITAN LIFE INS. CO.
• Court: Supreme Judicial Court of Massachusetts

163 Mass. 117

39 N.E. 792

LEVIE v. METROPOLITAN LIFE INS. CO.

Supreme Judicial Court of Massachusetts, Hampden.

February 28, 1895

COUNSEL

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

E.H Lathrop, for defendant.

OPINION

BARKER J.

The written application for insurance, upon which the policy issued, was made on June 6, 1892, and the assured died of acute consumption on January 12, 1893. The application contained an agreement that its answers and statements should be part of the contract of insurance, and that any false incorrect, or untrue answer should render the policy void. Assuming that this language gave to each statement of the application the technical character of a warranty nevertheless our statute provision that "no oral or written misrepresentation made in the negotiation of a contract or 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 is made with actual intent to deceive, or unless the matter misrepresented increased the risk of loss," precludes the defendant from prevailing unless it is established, not only that the statements or answers were incorrect, but also either that the misrepresentations were made with actual intent to deceive, or that the matter misrepresented increased the risk of loss. St.1887, c. 214, § 21. See, also, St.1878, c. 157, § 1; Pub.St. c. 119, § 181; St.1894, c. 522, § 21; White v. Society (Mass.) 39 N.E. 771; Ring v. Assurance Co., 145 Mass. 426, 14 N.E. 525; Durkee v. Insurance Co., 159 Mass. 514, 34 N.E. 1133. Whether the statements and answers of the application were incorrect, and whether, if they were incorrect, the misrepresentations were made with actual intent to deceive, or, if not so made, whether the matter misrepresented increased the risk of loss, were all questions of fact, to be submitted, if there was a conflict of evidence, to the jury, with proper instructions. The only exception stated in the bill is to the refusal of the court to rule that upon all the evidence the plaintiff was not entitled to recover, and to direct a verdict for the defendant. We might overrule the exceptions upon the ground that the bill does not present, or purport to present, to us either all the evidence, or the substance of the evidence. But assuming, in favor of the defendant, that the substance of the evidence is stated, in our opinion the ruling asked could not have been properly given.

We construe the question, "Are you ruptured; and, if so, do you wear a well-fitting truss?" to relate to the time of the answer; and conceding that upon the evidence the only reasonable finding was that the assured had suffered from...