McCoy v. Metropolitan Life Insurance

133 Mass. 82, 1882 Mass. LEXIS 168

• Court: Massachusetts Supreme Judicial Court
• Decided: June 28, 1882
• Status: Published

Opinion

Field, J.

The plaintiff contends that Watson was the agent of the company, and that the case is to be governed by Insurance Co. v. Wilkinson, 13 Wall. 222, and Insurance Co. v. Mahone, 21 Wall. 152, and other similar cases. But the doctrine of these cases has never been adopted by this court. The exceptions find that Watson “was employed by the defendant to solicit insurance on its behalf, and receive and forward applications therefor.”

In an action at law in this Commonwealth on such a policy, to recover the amount of the insurance, the application is considered as a part of the contract, and if in fact the representations in it are in a material respect untrue, the action cannot be maintained; and oral testimony cannot be received to show either that the company when it issued the policy knew that the representations were untrue, or that the untrue representations were inserted in the application by the agent employed by the company to solicit the insurance without the knowledge of the applicant who had orally stated the truth to the agent. Kibbe v. Hamilton Ins. Co. 11 Gray, 163. Draper v. Charter Oak Ins. Co. 2 Allen, 569. Campbell v. New England Ins. Co. 98 Mass. 381. Miles v. Connecticut Ins. Co. 3 Gray, 580. Lee v. Howard Ins. Co. 3 Gray, 583. Holmes v. Charlestown Ins. Co. 10 Met. 211. Barrett v. Union Ins. Co. 7 Cush. 175. Lowell v. Middlesex Ins. Co. 8 Cush. 127. Jenkins v. Quincy Ins. Co. 7 Gray, 370.

This case is not affected by the Sts. of 1861, c. 170, and 1864, c. 114. Markey v. Mutual Benefit Ins. Co. 103 Mass. 78.

It is unnecessary to consider whether the statements in the application amounted to warranties, because the false representations were plainly material to the risk. The ruling of the presiding justice was therefore correct, that the plaintiff could not recover on the policy.

It is now contended that the plaintiff may, under the second count of the declaration, recover the amount of the premiums paid, on the ground that the policy never attached. But this question was not raised in the Superior Court, and is not before us. Exceptions overruled.