White v. Provident Sav. Life Assur. Soc. of New York

• Decision Date: 28 February 1895
• Parties: WHITE v. PROVIDENT SAV. LIFE ASSUR. SOC. OF NEW YORK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 108

39 N.E. 771

WHITE v. PROVIDENT SAV. LIFE ASSUR. SOC. OF NEW YORK.

Supreme Judicial Court of Massachusetts, Essex.

February 28, 1895

COUNSEL

J.F. Quinn and H.P. Moulton, for plaintiff.

William H. Moody and Joseph H. Pearl, for defendant.

OPINION

BARKER J.

The most important question raised by the report is as to the effect of St.1887, c. 214, § 21, now, by the Massachusetts insurance act of 1894, re-enacted as St.1894, c. 522, § 21. The question is, in substance, whether the provisions of that section include in the word "misrepresentation" statements which in insurance law are classed as "warranties," because expressly said to be warranties by the language of the parties, or whether the section deals only with statements which are representations and not with technical warranties. The ruling of the trial court went upon the theory that the section did not affect statements which were said in the policy and the application to be warranties, but only misrepresentations as to matters which were the subject of representations as distinguished from warranties. The section, as it stood in St.1887, c. 214, § 21, was in these words: "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;" and the language of St.1894, c. 522, § 21, is the same. This language is broader than that of Pub.St. c. 119, § 181, which applied only to misrepresentations made in obtaining or securing policies of fire insurance and of life insurance, and which was in these words: "No oral or written misrepresentation made in obtaining or securing a policy of fire or life insurance 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 increases the risk of loss." The broader language of the section, as it is found in the general insurance act of 1887, was clearly designed to extend the rule, which up to that time dealt only with misrepresentations affecting policies of fire insurance and of life insurance, and to apply it to misrepresentations made in the negotiation of any contract or policy of insurance of whatever kind. Pub.St. c. 119, § 181, is merely a re-enactment identical in language with St.1878, c. 157, § 1, which as to life insurance was a wholly new provision. There was, however, a previously enacted statute containing the form of fire insurance policies, providing that the conditions of the insurance should be stated in the body of the policy, and that neither the application of the insured nor the by-laws of the company should be considered as a warranty or a part of the contract, except so far as incorporated in full into the policy, and appearing on its face before the signatures of the officers of the company. This was St.1864, c. 196, which took the place of and repealed St.1861, c. 152, which seems to have been the earliest statute dealing with the form of fire insurance policies, and which provided that in all insurance against loss by fire the conditions of the insurance should be stated in the body of the policy, and that neither the application nor the by-laws, as such, should be considered as a warranty or part of the contract. The provisions of Pub.St. c. 119, § 181, were substantially re-enacted in the general insurance act of 1887 and in that of 1894. See St.1887, c. 214, § 59; St.1894, c. 522, § 59. Besides the statutes already noted, there are also the several enactments, beginning in the year 1873, establishing a standard form for policies of fire insurance. These are St.1873, c. 331, with the amendatory act (St.1880, c. 175; St.1881, c. 166), repealing the two acts last cited, and prescribing a new standard form of policy; and Pub.St. c. 119, § 139; St.1887, c. 214, § 60; and St.1894, c. 522,§ 60,--the last three being substantially re-enactments, continuing in force the provisions of St.1881, c. 166. In the standard form of policy given in St.1873, c. 331, is this clause: "This policy shall be void if any material fact or circumstance stated in writing has not been fairly represented by the assured;" and the same clause is in the standard form given in St.1881, c. 166, and in Pub.St. c. 119, § 139; in St.1887, c. 214, § 60; and in St.1894, c. 522,§ 60. The provisions of St.1887, c. 214, § 21, are thus seen to be part of a system of legislation, beginning in the year 1861, and then applied only to fire insurance, in which the legislature has dealt with the subject of statements on the part of the assured affecting contracts of insurance, and which, before the question now raised for decision arose, had been made to apply to all statements made in the negotiation of contracts and policies of insurance of whatever kind. St.1878, c. 157, does not appear to have been enacted in consequence of any recommendation by the insurance department, nor has any construction been given to that statute or to Pub.St. c. 119, § 181; St.1887, c. 214, § 21; or St.1894, c. 522, § 21--by that department, or by this court, except so far as St.1887, c. 214, § 21, has been dealt with in the case of Ring v. Assurance Co., 145 Mass. 426, 14 N.E. 525, and in that of Durkee v. Insurance Co., 159 Mass. 514, 34 N.E. 1133. The case last cited has no bearing upon the present question, nor is that question governed by the decision of Ring v. Assurance Co. The statutes above referred to show a general intention on the part of the legislature to make, in lieu of the rules which spring from the doctrines held in the law of insurance as to technical warranties and representations, a statute rule by which to determine the effect upon the contract of all statements on the part of the assured, and also the effect of by-laws and similar matters which it might otherwise be contended would avoid or modify the contract.

The...