Lopardi v. John Hancock Mut. Life Ins. Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: FIELD, Justice.
• Citation: Lopardi v. John Hancock Mut. Life Ins. Co., 289 Mass. 492, 194 N.E. 706 (Mass. 1935)
• Decision Date: 28 February 1935
• Parties: LOPARDI v. JOHN HANCOCK MUT. LIFE INS. CO.

289 Mass. 492

194 N.E. 706

LOPARDI v. JOHN HANCOCK MUT. LIFE INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1935

Exceptions from Superior Court, Suffolk County; Greenhalge Judge.

Action of contract by Anthony Lopardi against the John Hancock Mutual Life Insurance Company, wherein there was verdict for defendant, and plaintiff saved exceptions.

Exceptions overruled.

F. W. Campbell, of Boston, for plaintiff.

W. P. Kelley, of Boston, for defendant.

FIELD Justice.

This is an action of contract brought by the beneficiary named in two industrial life insurance policies issued by the defendant, dated, respectively, November 21, 1928, and January 16, 1929, upon the life of Seraphina (or Serafina) Lopardi, the mother of the plaintiff, who died March 26, 1930. There was a verdict for the defendant and the case comes before us on the plaintiff's exceptions to the denial of requests for instructions numbered 3-16, inclusive, and to a part of the charge.

There was no error.

Each policy consisted of four pages and was executed by the defendant company on the first page. It provided thereon that the company ‘ grants this insurance * * * subject to the conditions and provisions on this and the three following pages which are hereby made a part of this contract, * * *’ and that this ‘ policy shall not take effect unless upon its date the Insured shall be alive and in sound health and the premium duly paid.’ On page 3 occurs the following: ‘ Policy When Void. This policy shall be void: (1) if the Insured * * * has attended any hospital * * * or has been attended by any physician, within two years before the date hereof, for any serious disease * * *; or has had before said date * * * disease of the heart * * *; unless each such * * * medical and hospital attendance and previous disease is specifically waived by an endorsement in the space for endorsements on Page 4 hereof signed by the Secretary.’ The space for indorsements on page 4 is entitled ‘ Endorsements Referred to in Policy Conditions.’ There was no indorsement of such a waiver on either policy. The only questions raised by the defendant at the trial related to the health of the insured.

1. The plaintiff contends that the provisions contained in the policies under the heading ‘ Policy When Void,’ above set forth, are warranties within the meaning of G. L. (Ter. Ed.) c. 175, § 186, and, consequently, do not preclude recovery by the plaintiff in the absence of proof that the warranties were ‘ made with actual intent to deceive’ or that the matters made warranties ‘ increased the risk of loss.’ See McDonough v. Metropolitan Life Ins. Co., 228 Mass. 450, 452, 117 N.E. 836. This question is raised by the plaintiff's exceptions to the refusal of the judge to instruct the jury in accordance with his requests numbered 9-15, inclusive, and to the charge. The contention cannot be sustained, for the provisions referred to are not warranties within the meaning of G. L. (Ter. Ed.) c. 175, § 186.

G. L. (Ter. Ed.) c. 175, § 186, reads as follows: ‘ 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.’

This statute does not apply to provisions in a policy which, by agreement of the parties, are made conditions precedent to the duty of performance on the part of the insurance company. 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, and cases cited. See Am. Law Inst. Restatement, Contracts § 250. The provisions in each of the policies in question, on page 3 thereof, entitled ‘ Policy When Void’ are such conditions. Though the word ‘ conditions' is not used in this clause of the policy except as it may be incorporated therein by reference to the space for indorsements (compare Souza v. Metropolitan Life Ins. Co., 270 Mass. 189, 191, 170 N.E. 62), the clause in form created a condition precedent. This is the force of the provision that the ‘ policy shall be void’ if certain facts existed before the date thereof, in the absence of a specific waiver indorsed on the policy. In form the clause resembles those held to create conditions precedent in Penta v. Home Fire & Marine Ins. Co. of California, 263 Mass. 262, 263, 160 N.E. 807, and in Kravit v. United States Casualty Co., 278 Mass. 178, 179 N.E. 399. That this clause provides that the policy ‘ shall be void’ in certain circumstances, while the clause on the first page of the policy provides that the policy ‘ shall not take effect’ unless the insured is in sound health upon the date of the policy, does not deprive the words ‘ shall be void,’ of their natural meaning. Moreover, the provision that the policy ‘ is in full immediate benefit from its date’ and the provision that it shall be incontestable after two years from its date are not inconsistent with an interpretation of the provisions in the clause entitled ‘ Policy When Void’ as conditions precedent.

Nothing in the substance of the provisions in the clause entitled ‘ Policy When Void’ deprives them of the effect required by the form in which they are expressed. The remedy of the beneficiary of an insurance policy may be defeated by the breach of a warranty therein contained, subject to the limitations of G. L. (Ter. Ed.) c. 175, § 186, but no contractual duty arises under such a policy unless there has been compliance with conditions precedent...