Fisher v. Metropolitan Life Insurance , 162 Mass. 236 ( 1894 )

Knowlton, J.

The evidence at the former trial was substantially the same as that now before us, and the questions of law already decided in the case leave little open to the defendant on this bill of exceptions.

The exception to the refusal of the court to give the first two rulings requested by the defendant is covered by the former decision, in which it was said that, if the plaintiff “ was innocent of any fraudulent intent, and was deceh'ed by Bannigan and induced by his fraudulent representations to make the application, then she could rescind the contract of insurance when she discovered the fraud, and recover back the amount of the premiums which she had paid.” 160 Mass. 386, 391. It is now argued that, under St. 1892, c. 372, the policy was binding upon the company, and that therefore she cannot recover. But if this statute, passed after the policy was issued, applies to the case, which we do not intimate, the policy is still void or voidable under the rules of the company, which require the examination form on the back of the application to be personally signed by the insured, and provide that, if it was not so signed, the policy shall be void.

All but one of the other instructions requested by the defendant were given in terms, with an addition which permitted the jury to find for the plaintiff if they found that she was innocent of any fraudulent intent and was induced to sign the application by Bannigan’s fraudulent representations. This addition to the instructions requested was warranted by the evidence, and was in accordance with our former decision.

The only other exception was to the refusal of the judge to rule that the plaintiff was presumed to know the defendant’s rules and regulations. These rules were not contained in the paper signed by her, and she testified that she did not know them until she had made all the payments that she made at all. These rules were printed in a small receipt-book, which came into her possession after the policy was issued, and there is no presumption of law that she read them before making her payments.

Exceptions overruled.