Souza v. Metropolitan Life Insurance

Wait, J.

The defendant on October 29, 1923, issued a policy of life insurance to John G. Souza whose home was in Fall River. A condition of the policy was that if “the Insured has . . . within two years before the date hereof, been attended by a physician for any serious disease or complaint, or, before said date, has had any pulmonary disease . . . unless such . . . previous disease is specifically recited in the ‘Space for Endorsements’ on page 4 . . . then, in any such case, the Company may declare this Policy void and the liability of the Company in the case of any such declaration or in the case of any claim, under this Policy, shall be limited to the return of premiums paid on the Policy, except in the case of fraud, in which case all premiums will be forfeited to the Company.” John G. Souza died in April, 1924. In answer to an action brought upon the policy, the defendant set up that this condition had been violated, in that the insured before the date of the policy had been attended by a physician for pulmonary disease. No recital of such disease was made in the “Space for Endorsements.” No claim of fraud was made.

A jury found for the plaintiff for $12.50, the amount paid as premiums on the policy. The case is before us upon exceptions to the admission of records of the Lakeville Sanatorium; to the refusal to instruct the jury as the plaintiff requested; and to the statement in the charge that “if the jury should find these records related to the insured, and that they indicated that the insured was suffering from *192 a pulmonary disease,” they should find for the plaintiff in $12.50.

The plaintiff testified that John G. Souza, her son, the insured, was at the Lakeville Sanatorium from March to December, 1921. She denied that he had tuberculosis. The Lakeville Sanatorium is a hospital for tubercular patients maintained in part by the Commonwealth; and by G. L. c. 111, § 70, must keep records which, by G. L. c. 233, § 79, are made admissible in evidence. The record admitted showed that John Souza of Fall River was admitted in February, 1921, suffering from a moderately advanced case of tuberculosis, first definitely found on March 8; that there was consolidation of part of the lungs due to pulmonary disease; that he was discharged December 17, 1921. A record of the board of health of Fall River, admitted without objection, showed that in February, 1921, John G. Souza was checked in a column headed ‘ ‘ Tuberculosis. ’ ’ The identity of the “John Souza” of the Lakeville and of the John G. Souza of the Fall River records with the insured, John G. Souza, was matter of proof. The similarity of the names alone was not enough to establish it; but taken with the testimony of the mother and the residence in Fall River there was enough evidence of the identity to warrant the admission of the records. Ayers v. Ratshesky, 213 Mass. 589 . Dolan v. Mutual Reserve Fund Life Association, 173 Mass. 197, 202 . Hinds v. Bowen, 268 Mass. 55 .

The rulings requested were denied rightly. The plaintiff was bound by the conditions of the policy although the attention of the deceased was not called to them. Fonseca v. Cunard Steamship Co. 153 Mass. 553 . Paulink v. American Express Co. 265 Mass. 182 . The defendant was not bound to exercise the right to avoid the policy at any time. The question of avoidance was immaterial. The condition limited the liability of the insurer to a return of the premiums if claim was made on the policy and the insured had had pulmonary disease before the date and this had not been recited.

Nor was there error in the charge. The judge left to the jury to decide whether the Lakeville and Fall River records *193 related to the insured, and what weight was to be given them as proof that the insured had been treated for serious disease within two years of October 29, 1923, and had had pulmonary disease before that date. The language used must have been taken to mean that if they found on weighing all the evidence that these records were to be trusted, then, under the policy, the plaintiff could recover only the amount of the premiums paid.

Exceptions overruled.