This is an action of contract brought by the beneficiary named in a policy of insurance made by the defendant upon the life of Ernest D. Glass. The policy was issued on May 19, 1922, and the assured died September 14,1922, of general sarcoma. There is no dispute that proper and seasonable proof of death was had. The defendant contested liability on the ground that statements were made by the assured in the application for the policy which were false and were intended to deceive, and that the matter misrepresented increased the risk of loss. After a verdict for the plaintiff, it contends that the judge erred in refusing to direct a verdict for the defendant; in the admission and exclusion of evidence; in refusing to give to the jury certain instructions requested; and in permitting improper and prejudicial argument.
We find no error in the admission and rejection of evidence.
It was immaterial, upon any issue tried, that the plaintiff knew or did not know whether sarcoma was cancer. Her knowledge does not establish the fact of identity in the diseases, or bear upon the knowledge or good faith of the assured at the time the policy was obtained. The judge was acting rightly within his powers to exclude cross-examination upon an immaterial matter.
The statements contained in a hospital record are by statute evidence only “so far as such records relate to the treatment and medical history of such cases.” G. L. c. 233, § 79. The entry "Unless radiation accomplishes a miracle *132the outcome will be fatal,” is a prophecy which has no bearing upon treatment or medical history of the case. It was excluded properly.
The report of inspection was not evidence of the facts stated in it; but we are unable to see in what way its admission prejudiced the defendant. It was immaterial. There was no dispute that the application was accepted, and that the home surroundings and past and present habits of the assured were satisfactory. There is no merit in this exception.
Nor do we find error in the refusal to give the instructions requested.
Requests four, five and six involve a ruling that melanotic sarcoma is a disease which, as matter of law, increases the risk of loss. This court has said that cancer increases the risk of loss, Smardon v. Metropolitan Life Ins. Co. 243 Mass. 599, 601; but the case decides that the judge was not required, as matter of law, to decide that either general or melanotic sarcoma was cancer. He was right in his refusal.
The judge could not be compelled to charge the jury with regard to particular parts of the evidence. Smith v. Import Drug Co. 253 Mass. 368. The statements in the proof of loss, even if binding on the plaintiff, did not preclude recovery. The issue was not whether the insured died of sarcoma, or how long he had suffered from it; but whether he had made false statements intending to deceive, and whether sarcoma, if he was suffering from it when the policy issued, increased the risk of loss.
The judge was not bound to give requests fifteen and sixteen. See Foss v. Mutual Life Ins. Co. of New York, 247 Mass. 10.
The bill of exceptions discloses no facts which should lead us to disturb the judge’s decision that no action on his part was called for by the portion of the argument to which the defendant objected. Commonwealth v. Perry, 254 Mass. 520, 531.
The judge was right in refusing to direct a verdict for the defendant. As was said in Smardon v. Metropolitan Life Ins. Co., supra, "The court could not take judicial notice *133that sarcoma is a form of cancer, and it could not be so assumed by the presiding judge.” The plaintiff contended that the assured was not suffering from sarcoma when the policy was issued. Dr. McLaren, called by the defendant, testified in cross-examination that “it was perfectly possible for a man to have sarcoma or melanotic sarcoma in July or August and be perfectly free from it in May.” There was, thus, matter of fact for the jury to pass upon in regard to his state when the policy issued. No contention is made that there was no evidence for the jury on the issues, what representations were, in fact, made; whether they were false; and whether, if false, they were made with intent to deceive. It was not for the judge to determine those issues of fact. McDonough v. Metropolitan Life Ins. Co. 228 Mass. 450.
Exceptions overruled.