Palatine Insurance Co. of London, Ltd. v. Kehoe

This is an action of tort for deceit, to recover back the sum of $844.90 paid to the defendant on a loss of personal property under a policy issued by the plaintiff. There was a verdict for the plaintiff and the case is here on certain exceptions taken by the defendant.

I. The defendant requested the judge to rule that upon all the evidence the plaintiff could not recover, and excepted to the *429refusal of the judge so to rule. This exception might well be overruled on the ground that the record before us does not purport to contain all the evidence. But, even on the facts- set forth in the bill of exceptions, there was evidence tending to show that the defendant, in the proof of loss signed and sworn to by her, knowingly misrepresented material facts concerning the property claimed to have been destroyed by fire, with intent to have the company act thereon; and that the plaintiff was thereby deceived and induced to pay her the money in question.

2. Exception was taken to the admission in evidence of the “ rider ” dated May 29, 1905, giving permission to the assured to remove the insured property to Randolph, and also to the judge’s charge in reference thereto. When the case was before this court in 1908 it was agreed that this rider was attached to the policy. Palatine Ins. Co. v. Kehoe, 197 Mass. 354. It now appears that an oral permit to remove the property was given first, that the rider was prepared by the plaintiff and made a part of the daily report in its books showing the status of the policy, and that it was not attached to the insurance policy because the policy was not presented when the permit was orally given and was destroyed by the fire on June 4,1905. The only reason urged by the defendant against the admissibility of the rider is that it was not shown to the defendant before the fire. But it was attached to the proof of loss which she signed and swore to on June 9,1905, a few days after the fire; and the jury might well find that she thereby adopted this printed form as a statement of the terms upon which the removal had been orally permitted. In fact the judge’s charge limited the use of the rider to this purpose. The charge was sufficiently favorable to the defendant, and she was not aggrieved by the admission of the evidence.

3. The statements of the defendant and her husband made to the district police officer were admissible to contradict their testimony as witnesses; and those of the defendant were also competent as admissions.

Exceptions overruled.