Lee v. Prudential Life Insurance

Sheldon, J. 1. The defendant has earnestly argued that a verdict ought to have been ordered in its favor. But the evidence upon which this contention is made differs in no material respect from that which was before us in this case in 1909. Lee v. Prudential Life Ins. Co. 203 Mass. 299. The weight of the evidence as reported does tend strongly now, as it did then, to support the claim of the defendant that George H. Lee, the person insured, was not in good health when the policy was issued and the premium paid. But the power to set aside a verdict upon the ground that it was against the weight of the evidence is vested in the judge who presided at the trial and cannot be exercised by us. We can consider only whether there was any evidence in support of the verdict. Hayes v. Moulton, 194 Mass. [447] 157, 163, 164. Saures v. Stevens Manuf. Co. 196 Mass. 543. Laprade v. Fitchburg & Leominster Street Railway, 205 Mass. 77, 79. That question is settled against the defendant by our former decision in 203 Mass. 299. 2. The modification made by the judge in the defendant’s eighteenth request was not objectionable, and there was no error in the refusal to give its nineteenth request. 3. But the defendant was aggrieved by the rulings made with reference to its request that a post mortem examination should be made of the remains of the insured. The plaintiff on cross-examination had testified that this request had been made to her, and that after consultation with her counsel she had refused it, adding that she “ would have refused it anyway.” On re-direct examination she testified that she “knew the conditions that were attached to the disinterment or some of them.” There seems to have been no contention and there has been no suggestion that any other conditions were attached to the proposed disinterment than those which were stated in the defendant’s written request. Those conditions (if they may be so called) were merely a promise to abandon the defense and to pay the plaintiff’s claim without delay if upon the examination “ it should appear that the deceased was in good physical condition, or if it should not be definitely determined that he was not ... in good physical condition, and was not in a consumptive state,” with a request that the defendant’s attorney might be present with physicians representing the company, and a suggestion that two physicians for the claimant (the plaintiff) and two for the company might be present. Under these circumstances, the defendant’s written request should have been admitted in evidence. It was a request to the plaintiff to consent to an examination-which might afford what could be found to be the best evidence upon the main issue in controversy. It was accompanied by the defendant’s promise to risk its defense entirely upon the evidence thus to be obtained, without any suggestion that the plaintiff should be bound thereby. She chose to decline the offer, without intimating any other reason therefor than her knowledge of the conditions attached to the proposed disinterment. It was the right of the defendant to show the jury what those conditions were, and to have it deter [448] mined whether any and what weight should be given to them, and whether the plaintiff’s refusal did not result solely or chiefly from a desire on her part to keep from the jury what might be, not only the best, but decisive evidence upon the issue before them. The instructions given upon this question were insufficient. The jury, to use the language of the defendant’s request, were “ entitled to draw an adverse inference as to the condition of health of the insured on the date of the delivery of the policy from the refusal of the plaintiff to permit a post mortem examination of the body.” Stack v. New York, New Haven, & Hartford Railroad, 177 Mass. 155, 158. But the instruction given did not allow them to consider her refusal unless they found also that her refusal was due pnly to a desire to prevent the truth from being known. The refusal itself, if not satisfactorily explained, was evidence tending to show such a desire on her part. There was here an absolute refusal to allow any examination, not merely a personal objection to a particular physician, as in the Stack case already referred to. Of course, if it appeared that her refusal was due wholly to other reasons entirely disconnected with the issue and sufficient to justify her in keeping from the jury the evidence asked for, no inference should be drawn against her. The fact of the defendant’s request and of the plaintiff’s refusal, was before the jury, and it has been suggested that for this reason the defendant was not aggrieved by the exclusion of the paper itself. This might be so if the plaintiff had not rested her refusal, in part at least, upon the conditions stated in the paper. As we have already said, this made it proper that the conditions should be made known to the jury. Nor could the paper be excluded as being an offer of compromise. A promise to abandon a defense if the plaintiff will allow the production of competent and material evidence which is in her control, if that evidence shall be in her favor, cannot be styled an offer of compromise, when there is no proposition that she shall herself be bound by the evidence. Exceptions sustained.