Mutual Life Ins. Co. of New York v. Royal
| Decision Date | 13 September 1935 |
| Citation | 197 N.E. 646,291 Mass. 487 |
| Parties | MUTUAL LIFE INS. CO. OF NEW YORK v. ROYAL. ROYAL v. MUTUAL LIFE INS. CO. OF NEW YORK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Suit in equity by the Mutual Life Insurance Company of New York against Theresa J. Royal, and action at law by Theresa J Royal against the Mutual Life Insurance Company of New York. From a final decree dismissing the bill in equity, plaintiff appeals, and to an order overruling a plea in abatement at the hearing of the action at law on its merits, where there was a finding for the plaintiff in the sum of $2,098 defendant brings exceptions.
Final decree in suit in equity affirmed, and exceptions in action at law overruled.
Appeal from Superior Court, Suffolk-Worcester County; Donnelly, judge.
G Hoague, of Boston, for Mutual Life Ins. Co. of New York.
J. E. Casey, of Clinton, for Theresa J. Royal.
These two cases were heard together by agreement of parties before a judge of the Superior Court. The first is a suit in equity brought on June 20, 1932, praying for the cancellation of a policy of insurance issued on the life of Albert Royal who died on April 20, 1932. The second is an action at law on that policy of insurance brought on November 29, 1932, by the beneficiary who is the defendant in the first case. One term of the policy of insurance was that it should not take effect unless delivered and received and the first premium paid while the insured was in good health. At the trial the issue in each case was the same, namely, whether the insured was in good health on April 7, 1932, when the policy was delivered and the first premium paid. In the action at law the insurer filed in answer in abatement setting up the pendency of the suit in equity and also an answer to the merits. The answer in abatement was overruled. The trial judge found for the plaintiff in that case. That case comes before us on exceptions by the insurer to the overruling of the answer in abatement, and to the denial of a request for a finding in its favor and other requests. In the suit a final decree was entered dismissing the bill from which the insurer appealed.
1. The plea in abatement was properly overruled. The pendency of a suit in equity is not usually sufficient ground for sustaining a plea in abatement to an action at law. This is especially true where the plaintiff in each case is not the same. Colt v. Partridge, 7 Metc. 570, 576; Mattel v. Conant, 156 Mass. 418, 424, 31 N.E. 487; Powers v. Heggie, 268 Mass. 233, 239, 167 N.E. 314. There is nothing at variance with this principle in Alpert v. Mercury Publishing Co., 272 Mass. 39, 172 N.E. 221. Although the issues raised in each of these two cases are the same, the plaintiffs are different, the relief sought is dissimilar and the plaintiff in the action at law cannot obtain in the suit in equity a money judgment. This is not a case where equity and law have concurrent jurisdiction to the same end. Hoare v. Bremridge, L. R. 8 Ch. App. 22. The statement in Morin v. Ellis, 285 Mass. 370, 373, 189 N.E. 95, 97, that when ‘ there is concurrent jurisdiction at law and in equity the general rule is that the court which first acquires jurisdiction must beside the case,’ therefore is not applicable. Cases like Nash v. McCathern, 183 Mass. 345, 347, 348, 67 N.E. 323, and Phillips v. McCandlish, 239 Mass. 301, 305, 131 N.E. 861, are not controlling.
2. The ruling of the trial judge was right that the plaintiff in the action at law must show compliance with the condition of the policy that it should become effective only if delivered and the first premium paid while the insured was in good health. Fondi v. Boston Mutual Life Ins. Co., 224 Mass. 6, 112 N.E. 612, and cases cited. Carroll v. Metropolitan Life Ins. Co., 258 Mass. 249, 263,154 N.E. 757; Larsen v. Metropolitan Life Ins. Co. (Mass.) 194 N.E. 664. The finding on this issue was in favor of the plaintiff. It must stand if there is any evidence to support it. State Street Trust Co. v. Lawrence Mfg. Co., 284 Mass. 355, 359, 360, 187 N.E. 755; Moss v. Old Colony Trust Co., 246 Mass. 139, 143, 140 N.E. 803; Bratt v. Cox (Mass.) 195 N.E. 787.
The policy was delivered and the first premium paid on April 7, 1932. The sole question is whether the insured was in good health at that time. He died on April 20, 1932, of a ruptured appendix complicated by peritonitis. The certificate made out by the plaintiff in her claim under the policy contained a statement that the health of the insured first began to be affected on April 4, 1932, and that his last illness lasted two and one-half weeks. The trial judge rightly ruled that she was not bound by this statement. Her testimony at the trial was of a contrary tenor and might have been believed. Knight v. New England Worsted Co., 2 Cush. 271, 282, 294; Bone v. Holmes, 195 Mass. 495, 507, 81 N.E. 290; Conant v. Evans, 202 Mass. 34, 38, 88 N.E. 438; Hyland v. Hyland, 278 Mass. 112, 119, 120, 179 N.E. 612. Compare Sullivan v. Boston Elevated Railway Co., 224 Mass. 405, 112 N.E. 1025; Whiteacre v. Boston Elevated Railway Co., 241 Mass. 163, 134 N.E. 640.
The contention of the insurer is that the insured was suffering from appendicitis on April 7, 1932. There was strong evidence to support that contention. The wife of the insured, however testified that during the year previous to his death he had no sickness except jaundice (which is not here material) until April 11, 1932, and that he worked regularly until that date. She gave evidence in considerable detail as to his conduct during the crucial days which indicated good health. This was corroborated by testimony of another witness who lived in the same house. The foreman under whom the insured worked testified that he saw the insured three or four times daily and that he worked up to 11 o'clock in the forenoon of April 11, 1932, and made no complaint of not feeling well; that he was a cloth lining cutter and the labor required a rugged man. A physician testified to making a thorough examination of the insured two or three days prior to April 13, 1932, and to finding nothing ‘ in...
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