The Portland daily press., 1895-04-09
SUPREME JUDICIAL COURT.

SUPREME JUDICIAL COURT.
The following rescripts and decisions
were received yesterday:
ANDRUscoGGIN COUNTY.
Edward F. shanahan VS.. Metropolitan
Life Insu rance Company.
Rescfipt sby Foster, J.-This is an action
for money had and received to recover the
amount of premiums paid to the defendant
upon policy of life insurance of plaintiffs
| life for his own benefit.
January %, 1889. the plaintiff was induced
by the defendants agent to take policy
of insurance on his own life in the defen-
dant company. payable at death to his exc
cutor, administrator or assigns, the agent
CT the company representing that it was
not necessary that he should be examined
by physician of the company, and that
the defendant would issue it's policy al
| though there was no medical examination
of the plaintiff, which representations were
false and known to the defendants agent
| 10 be SO.
The plaintiff, induced by these represen-
| tations, tooK out policy in the defendant
company on his own life, and the defen-
dant's agent filed the application and the
plaintiff signed it.
| The plaintiff was not examined by a ply
sician of the company, although what pur-
ports 10 be a certificate of medical exami-
nation Of the plaintiff signed by physician
i of the company is attached to the applIca-
ion, it having been signed by the compa-
ny's agent or physician without any exami-
he -1,1<r <F h.
| plaintiff.
February IL. 1889, upon this application
and examination the company issued its
policy for the sum OF $500 on his life.
The plaintiff is unable to read in the Eng
lish language, and all the negotiations for
the insurance were carried on in the
French language.
| Pursuant to the conditions of the policy
the plaintiff continued to pay the weekly
premiums of twenty-seven cents thereon,
amounting in the whole to $4995, until
August ~. 1892, when he refused to make
further payments of premiums and demand
ed a return of the premiums paid, upon the
| ground that Misrepresentation Of the agent
OF the company at the time the plaintiff
agi eed to take the policy were false, and
that he was induced TO. take the policy
4 through SAID representations.
| Upon the foregoing facts the plaintiff
claims the policy was void, and that he is
| therefore entitlsd to recover back in this
action tie premiums paid upon the policy.
| The case shows an insurance regular in
every respect with the. exceptions that
| there was no medical examination, although
/ there was attached to the application II
| certificate Of medical examination regular
III form and purpoIting to be signed by the
comEany's physician.
| The company treated the policy as valid
and binding npon the company, and never
Eaought to repudiate it or treat it.as any
| thing but valid contract between it and
| the plaintiff till long after the 22nd of Au-
gust, 1882, when the plaintiff himself refused
| to Fay the premiums.
| Whatever representations were made were
those of the company's agents, and the
company We're bound by them. The compa-
ny would be stopped from asserting that
they were not binding on the company.
Graftan VS.. Met. Life ms. Co., so y. Y.
PSI: Mowry VS.. Rosendale. "a N. r, $50.
| The facts in the case al bar are so similar
TO those in the case of Mailhoit VS.. Met.
| Life ms. Co., SO recently decided by the
| court, that any exposition of the law in
| this case is unnecessary, as the principles
| governing the decision In this case are
stated fully in that. and must be decisive
| in this. No recession is set up. or proved
| by the facts Tstated. The policy was nut
| void bsolutcly. but voidahle. The risk had
begun to run us in the case named. Tho
| same consequences follow as in that and
| the entry must be Judgment for the defen-
| dant.
| = Adolphis Mailhiot VS.. Metropolitan Life
| Insurance Company.
| Rescript by Foster. 1.-The liability of
an insurance company for return of pre-
miums is by no means absolute. but depends
upon the question whether the policy has
ever become binding contract between
the parties.
| If it has, and the risk hos once common
ed, then there can be no apportionmept,
nor will an action lie for the recovery of
the premiums paid
| Where the raud alleged is that committed
by the company's agent in not having the
| application signed. and representing that
it was not necessary that it should be-, and
| that no medical eXamina ton was necessa-
| ry, line policy issued by the company upon
| theslife insured is not absolutely roid, but
voidable.
| In such case it is Eot a fraud upon the in
sured, or fraud in relation to provisions
| of the policy that were for his benefit, and
| of which be could take advantage.
| The application and medical examina ton
| are preliminatries for the protection of the
company in issuing its policy, and solely
| for it's benefit. and the company may dis
pense with them entirely if it secs SO
| to do.
| Inasmuch as the company has treated the
| contract valid and subsisting,..the plain
| tiff has no legal grounds of compliant.
| If person is induced by false represen ia
| lions to take out a, policy of insurance. he
| can avoid it and recover the premiums paid
upon it.
But the representations must be material
as to him, such as work an injury to him.
| And moreover it should be shown in such
case that there was rescission, or that it
WAS unnecessary by reason of the policy
being entirely worthless. Judgment for
he defendant.