McDonough v. Metro. Life Ins. Co.

• Decision Date: 27 November 1917
• Citation: 117 N.E. 836,228 Mass. 450
• Parties: McDONOUGH v. METROPOLITAN LIFE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 450

117 N.E. 836

McDONOUGH

v.METROPOLITAN LIFE INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 27, 1917.

Report from Superior Court, Suffolk County; John F. Brown, Judge.

Action by Mary T. McDonough against the Metropolitan Life Insurance Company. Directed verdict for defendant, and case reported to the Supreme Judicial Court. Judgment ordered to be entered for plaintiff in a certain sum, with interest.

Francis R. Mullin and Paul F. Spain, both of Boston, for plaintiff.

Butler, Cox, Murchie & Bacon and William P. Kelley, all of Boston, for defendant.

RUGG, C. J.

This is an action of contract brought by the beneficiary to recover the amount of a policy of insurance issued by the defendant upon the life of her husband. The plaintiff offered in evidence the policy of insurance and the proofs of death. There was testimony to the effect that the insured appeared to be a healthy man on March 3, 1915, the date of the policy; that, being in some pain, in the previous November he went to the Carney hospital, where an operation was performed; that a mistaken diagnosis of his case then was made; ‘that they cut the man open and sewed him right up again;’ that ‘he took ether badly and they stopped the operation and allowed him to come out of the ether’; and that on his return from the hospital he said that there ‘they operated upon him and they couldn't find anything the matter with him.’

The plaintiff on this evidence made out a prima facie case and was entitled to go to the jury if nothing more appeared.

There was evidence introduced by the defendant from the hospital surgeons to the effect that the insured came to the hospital in November, 1914, and an exploratory operation was performed on him; that the ether affected him so badly that they had to stop, and that at that time in their opinion there was undoubtedly a cancer, a cancerous growth, or a cancerous tumor on the caecum; that on March 24, 1915, a second operation was performed and the tumor was found to have increased in size; on account of its condition, no attempt was made to remove it but another operation, a suture of the intestine, was performed and he died four days later; and that in their opinion he had a cancerous growth on the date of the policy and was not then a sound, healthy man. There was also testimony from one of these surgeons that--

‘he never told the insured what the matter was with him after the November operation; that the man had symptoms that indicated the existence of other things rather than a malignant tumor of the intestines; that a man might have chronic inflammation down there and live indefinitely, and that a chronic inflammation would produce many of the symptoms that were found in this case. * * * The only positive way of determining the existence of a malignant tumor is by a microscopic examination, but that no such examination was had in this case, and except for that it is purely a matter of opinion of the different doctors based upon the symptoms that they have before them.’

In his application for this policy, dated February 28, 1915, the insured stated:

‘I have never had * * * cancer or other tumor. * * * I am now in good health. * * * I have never been under treatment in any * * * hospital’

-and that he had last been treated by a physician 21 years before for measles. It was a term of the policy that:

‘All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties.’

It is provided by St. 1907, c. 576, § 21, that:

‘No oral or written misrepresentation or warranty 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 or warranty is made with actual intent to deceive, or unless the matter misrepresented or made a warranty increased the risk of loss.’

It is not enough under this statute to prevent recovery that there have been misrepresentations. It must also appear that either they were made with intent to deceive or that the falsities in them increased the risk of loss. That is an affirmative defense. The burden of proving that defense and thereby defeating recovery on the policy rests on the defendant. Barker v. Metropolitan Life Insurance Co., 198 Mass. 375, 84 N. E. 490;Collins v. Casualty Co. of America, 224 Mass. 327, 331, 112 N. E. 634, L. R. A. 1916E, 1203. It is rarely that it can be ruled as matter of law that the burden of proof has been sustained. This is especially true when the attempt to sustain that burden rests upon oral testimony introduced by the party upon whom the burden rests, and upon inferences from circumstances. Brusseau v. N. Y., N. H. & H. R. Co., 187 Mass. 84, 72 N. E. 348;Kelsall v. N. Y., N. H. & H. R. Co., 196 Mass. 554, 556,82 N. E. 874;La Fond v. B. & M. R. R., 208 Mass. 451-456, 94 N. E. 693;Worcester Color Co. v. Henry Woods Sons Co., 209 Mass. 105, 110, 95 N. E....