SUPREME JUDICIAL COURT OF MASSACHUSETTS, 1891.

COBB v. COVENANT MUT. BEN. ASSO.

(153 Mass. 176.)

Warranty as to medical treatment and consulting a physician.

DEVENS, J.-By the terms of his application, which is referred to and made a part of the benefit certificate issued to the insured, he warranted the answers to the questions propounded "to be full, complete, and true," and agreed that the answers and application should form the exclusive and only basis of the contract between himself and the defendant, and further agreed that, if "any misrepresentations or fraudulent or untrue answers" had been made, the contract should be null and void. The case at bar differs obviously from those in which an applicant has averred that the answers made by him are true according to his best knowledge and belief, or has limited his statement by other similar words. Such answers, if accepted by the insurer, would render it necessary for them to prove that, as thus limited, they were untrue. Clapp v. Association, 146 Mass. 529.

The sixth question in Form A of the application was: "Have you personally consulted a physician, been prescribed for, or professionally treated within the past ten years?" To this question the insured answered, "No;" and it has been found by the jury, upon an issue submitted to them, that this answer was false. The plaintiff contended that such an issue should only be found against him in case the answer was intentionally false. In our view, the insured having made the truth of his statements the basis of his contract, it was sufficient for the defendant to show that this statement was actually untrue. The plaintiff further claimed that the question referred to in the application should be construed as referring to a specific disease, and that, if the insured had consulted or been prescribed for by a physician for a pain that did not amount to a disease, his answer to this question would not prevent the plaintiff from recovering. The presiding judge declined to instruct in accordance with this contention, and instructed the jury that if Cobb, the insured, being, as he supposed, in need of a physician, went to one for the purpose of consulting him

as to what the matter was with him, had an interview, answering such inquiries as the physician deemed pertinent, receiving aid, advice, or assistance from him, Cobb "consulted" a physician within the meaning of the interrogatory; and, further, that if they found that he went to a physician for the purpose of procuring aid and assistance from the physician as such, and the physician prescribed a remedy, or treated him professionally either by giving him a prescription or by administering hypodermic injections of morphine, of which there was some evidence, then he was professionally "treated" within the meaning of the interrogatory, or professionally "prescribed for." This ruling appears to us correct. While the question whether Cobb had a fixed disease, and what the disease was, might be an inquiry involved in considerable embarrassment, the question whether he had consulted a physician, or had been professionally treated by one, was simple, and one about which there could be no misunderstanding. Had it been replied to in the affirmative, the answer would have led to other inquiries. Indeed, the question which follows is, "If so, give dates, and for what disease." It is upon the existence of this latter question that the plaintiff founds an argument that it was necessary to show that Cobb had some distinct disease permanently affecting his general health before it could be said that he answered this question untruthfully. But the scope of the question cannot be thus narrowed. Even if Cobb had only visited a physician from time to time for temporary disturbances proceeding from accidental causes, the defendant had a right to know this, in order that it might make such further investigation as it deemed necessary. By answering the question in the negative, the applicant induced the defendant to refrain from doing this. In Insurance Co. v. McTague (49 N. J. Law, 587), it was held that where the applicant stated that he had not consulted a physician, or been prescribed for by one, and such statement was shown to have been false by proof of a prescription received, there could be no recovery, although it appeared to have been given for a cold. The court says: "The representation did not aver a condition of health, or that it was requisite or proper to consult a physician. It averred that he had not consulted a physician, or been prescribed for by a physician. The fact found contradicted this averment, whether

the consultation and prescription related to a real disease or an apprehended disease." After retiring, the jury returned into court with a request that the court would define the word "prescription." There was evidence in the case from three physicians tending to show that, on more than one occasion, they had consulted with him, administered hypodermic injections for the pain which he was suffering, and also given him medicine. Ther presiding judge instructed the jury fully as to the meaning of a prescription," and added that, if the insured went to one of those physicians and received from him a medicine as a physician, for the purpose of assistance and relief in a difficulty under which he was then suffering, then it is a "prescription within the meaning of the law. The judge added: “And it is your duty as jurors so to find, whether the consequences may be as you would wish them, or otherwise." The plaintiff excepting to the last paragraph as a charge upon the facts, the presiding judge modified this, and said: "I will endeavor in this way to define a 'prescription,' and let this definition stand for the definition objected to: If the insured went to a physician for the purpose of getting his aid, advice, or assistance ast a physician in a difficulty under which he was then suffering, or supposed himself to be suffering, and the physician, hearing what the insured had to say, as a physician, and, for the purpose of relief, or cure, or aid, or assistance, gave to the insured medicine, then it may be said that such a physician prescribed for him." To this the plaintiff also objected as a charge upon the facts, and claimed that the jury should have been instructed that the word "prescription" was a word in common use, which they could clearly define as well as the court. This latter instruction leaves clearly to the jury the inquiry whether the insured had gone to the physician and received from him aid, assistance, medicine, etc., in answer to his application. We cannot see that it has any element of a charge upon the facts. The definition of a "prescription" was entirely correct, nor, even if a word in common use was explained, was there reason why the judge should not define it in answer to the request, if gave them an accurate definition.

he

The plaintiff also insists that the last clause of the definition as first given was a charge upon the facts. It is perhaps sufficient to say that it was clearly withdrawn, and the later defi

nition given in the place of it. We do not, however, consider the last clause of the first definition as a "charge" upon the facts within the meaning of Pub. Stat., c. 153, § 5. The judge had defined the word as to the meaning of which they had inquired, and submitted to them in a condensed way the evidence bearing upon the issue which they were to determine. Certain facts, if they find them to exist, he informs the jury, will make a "prescription" by a physician, within the meaning of the law. He then adds: "And it will be your duty as jurors so to find, and it is your duty so to find, whether the consequences may be as you would wish them to be, or otherwise." Although the last clause is a caution to the jury to disregard the consequences which may follow their decision, there is no reason why a judge, when he deems it proper to do so in the trial, may not caution the jury not to be swayed by sympathy, prejudice, or passion, and direct them to be governed in their finding by the facts as they exist, without regard to the results that may follow therefrom.

Bill dismissed.

CHAPTER XVII.

CLAUSES OF THE LIFE POLICY-CONCLUDED.

IOWA SUPREME COURT, 1880.

CRITCHETT v. THE AMERICAN INS. CO.

(53 Iowa, 404.)

The ordinary canvassing agent has no authority to extend the time for payment of premiums contrary to the terms of the policy, but if employed to deliver the policy he has thereby an implied authority to determine how the premium due at the time of such delivery shall be paid.

ACTION upon a policy of insurance. The defendant alleges that the plaintiff was in default at the time of the loss by reason of the non-payment of an installment of the premium. For a portion of the premium the company had taken the plaintiff's note, whereby he had obligated himself to pay the company three dollars upon the first day of November, 1876, and the same amount upon the first day of November in each of the three succeeding years. The policy contained a provision in these words: "If default shall be made by the assured in the payment of any installment of premium upon the installment note given for this policy for the space of thirty days after such installment shall become due, by the terms of such note, then this policy shall be null and void, and this company shall not be liable to pay any loss happening during the continuance of such default in payment of such installment; but on payment by the assured or his assigns of all installments of premium due under this policy, or upon the installment note given therefor, the liability of the company under the policy shall attach, and this policy be in force as to all the losses happening after such payment, unless it shall be inoperative from some other cause."

The installment falling due Nov. 1, 1876, was not paid.