Giannelli v. Metropolitan Life Ins. Co‪.‬

LUMMUS, Justice. This is an action of contract by the beneficiary under a policy of life insurance for $5,000, issued by the defendant on September 17, 1936, to an unmarried medical student then nearly twenty-four years old. He died on January 16, 1937, of heart disease caused by hypertension of the arteries. Section 4 of the 'Provisions and Benefits' in the policy is as follows: 'Entire Contract: -- This Policy and the application therefor, a copy of which is attached hereto as a part thereof, constitute the entire contract between the parties, and all statements made by the Insured shall, in the absence of fraud, be deemed representations and not warranties, and no statement shall avoid this policy or be used in defense of a claim hereunder unless it be contained in the application therefor.' The insured signed the following, which appeared at the bottom of Part A of the application: 'It is understood and agreed: 1. That the following statements and answers are correct and wholly true, and, together with the answers to questions on Part B hereof [which with Part A comprised the whole application], they shall form the basis of the contract of insurance, if one be issued.' The defence is based upon allegations of misrepresentations in answers by the insured to questions contained in Part B of the application. The plaintiff got a verdict. The defendant, on its exceptions, argues (1) that the Judge who ordered an officer of the defendant to answer certain interrogatories erred in so doing, and that the Judge who presided at the trial erred in allowing the answers to those interrogatories to be read in evidence, (2) that a verdict in favor of the defendant should have been directed, and (3) that certain instructions requested by he defendant should have been given. By the first bill of exceptions the defendant assails an order requiring an officer of the defendant to answer interrogatories as to the findings reported to the defendant by a physician named MacDonald who was employed by the defendant pursuant to G.L.(Ter.Ed.) c. 175, § 123, to make a physical examination of the insured on September 13, 1936, shortly before the policy was issued. The essence of those findings was that the insured had a normal blood pressure. The ground of the exception is, that interrogatories to a corporate officer can require the disclosure of only such facts as are within the personal knowledge either of that officer or of 'agents, servants and attorneys' of the defendant, G.L.(Ter.Ed.) c. 231, §§ 62, 65. Warren v. Decoste, 269 Mass. 415, 169 N.E. 505; Gunn v. New York, New Haven & Hartford Railroad, 171 Mass. 417, 420, 421, 50 N.E. 1031, and that the physician is not an 'attorney' and is neither 'agent' nor 'servant.' Clearly he is not a servant. O'Brien v. Cunard Steamship Co., 154 Mass. 272, 276, 28 N.E. 266, 13 L.R.A. 329; Pearl v. West End Street Railway, 176 Mass. 177, 179, 57 N.E. 339, 49 L.R.A. 826, 79 Am.St.Rep. 302; Roosen v. Peter Bent Brigham Hospital, 235 Mass. 66, 74, 126 N.E. 392, 14 A.L.R. 563; McMurdo v. Getter, 298 Mass. 363, 368, 10 N.E.2d 139. In his examination he was not subject to any control of his physical acts or his mental operations by the defendant. But one may be an agent without being a servant. Am.Law Inst.Restatement, Agency, §§ 1, 2 220(1), Comment c. For example, a salesman operating his own automobile on the business of his employer has been held not to be a servant as to the physical act of operation. Khoury v. Edison Electric Illuminating Co., 265 Mass. 236, 164 N.E. 77, 60 A.L.R. 1159, and note; Hardaker's Case, 274 Mass. 7, 174 N.E. 210; Child's Case, 274 Mass. 97, 174 N.E. 211; Wescott v. Henshaw Motor Co., 275 Mass. 82, 87, 175 N.E. 153; Manley's Case, 280 Mass. 331, 182 N.E. 486. Compare Singer Mfg. Co. v. Rahn, 132 U.S. 518, 10 S.Ct. 175, 33 L.Ed. 440; Still v. Union Circulation Co., 2 Cir., 101 F.2d 11, 13.