Kelly v. Mutual Life Insurance

Hammond, J. It does not seem to be disputed that Margaret E. Kelly, upon whose life the policy was issued, suffered from some kind of Bright’s disease and was treated therefor; that this occurred only a few months before she applied for the policy; and that her negative answer to the inquiry of the defendant’s medical examiner as to whether she had ever had 44 gravel, bladder or kidney disease ” was false. By the terms of the policy this misrepresentation is fatal to the validity of the policy if it was made with actual intent to deceive, or if it was as to a matter which increased the risk of loss. R L. c. 118, § 21. The trial judge seems to have been of the opinion that the kidney trouble with which she was afflicted before the application increased the risk of loss, and upon that ground ordered in each case a verdict for the defendant. " Some diseases or bodily conditions are of such a nature that the question whether they increase the risk of loss is for the jury. Rupture was said to be of that class in Levie v. Metropolitan Ins. Co. 163 Mass. 117. On the other hand, there are conditions and diseases of a nature which require it to be held, as matter of law, that a misrepresentation as to them is one as to a matter which increases the risk of loss, within the meaning of the statute. That the applicant was addicted to the excessive use of intoxicating liquors was held to be such a matter in Rainger v. Boston Mutual Life Association, 167 Mass. 109.” Barker, J., in Brown v. Greenfield Life Association, 172 Mass. 498, 503, in which case it was held that 44 consumption ” in [401] creased the risk of loss. See also Dolan v. Mutual Reserve Fund Life Association, 173 Mass. 197. Generally, however, the question whether the disease is such as to increase the risk of loss is for the jury. See in addition to cases before cited Hogan v. Metropolitan Life Ins. Co. 164 Mass. 448; Coughlin v. Metropolitan Life Ins. Co. 189 Mass. 538; Barker v. Metropolitan Life Ins. Co. 198 Mass. 375. There was evidence that the disease which Mrs. Kelly had before the application was an acute form of Bright’s disease; that that form of the disease is curable; that at the time she applied for this insurance she had fully recovered and for many months appeared to be well, and performed hard manual labor. Upon the whole evidence, including the testimony of the physicians, the questions, whether the disease she had was the acute or chronic form of Bright’s disease, and whether, if acute, it increased the risk of loss, were for the jury. Nor do we see any ground upon which the order directing verdicts for the defendant can be sustained. Exceptions sustained.