Opinion
Opinion, March 6, 1935.
EQUITY. R. S., CHAP. 60, SECS. 177-180.
In an action in equity to reach and apply insurance money by virtue of the provisions of Secs. 177-180, Chap. 60, R. S., wherein the defense raised a single issue, namely, that the insurance was procured by fraud, and wherein the evidence disclosed that insurance was not sought until two days after the collision in which the plaintiffs were injured, and that the agent of the insured who procured the insurance was fully informed of that fact, and falsely misrepresented to the insurance agent and that within a reasonable time after learning the truth, defendants cancelled the policy and returned the premium.
HELD: A decree dismissing the bills with costs must be the necessary result, and while cases involving questions of fact alone are not ordinarily considered on report, yet under the circumstances presented in the case at bar, the Law Court feels it its duty to finally dispose of the litigation without compelling the parties to incur further expense.
On report. Bills in equity brought against the defendant corporation to reach and apply insurance money, by virtue of the provisions of Secs. 177-180, Chap. 60, R. S. Bill dismissed. Decree accordingly. The cases fully appear in the opinion.
Robinson Richardson, for plaintiffs.
William B. Mahoney, for defendant.
SITTING: PATTANGALL, C. J., DUNN, STURGIS, BARNES, THAXTER, HUDSON, JJ.
On report. Bills in equity to reach and apply insurance money, by virtue of the provisions of Secs. 177-180, Chap. 60, R. S. 1930. Plaintiffs recovered judgments for personal injuries sustained on January 14, 1933, in a collision with a truck which defendant had insured against liability. The defense raised a single issue, namely, that the insurance was procured by fraud. The question is of fact. There is, and can be, no dispute as to the law governing the case.
A careful examination of the long, involved and somewhat confused record discloses the following facts. The policy, made effective January 1, 1933, was issued on February 7th as a result of negotiations between agents of the insured and the insurer. The evidence is clear and convincing that these negotiations began on January 16, two days after the collision in which plaintiffs were injured; that the agent of the insured, who procured the insurance, was fully informed as to that fact; that he falsely misrepresented it to insurer's agent; that, except for such misrepresentation, the policy would not have been issued; and that, within a reasonable time after learning the truth, defendants cancelled the policy and returned the premium. A decree dismissing the bills with costs is the necessary result.
A discussion of the details of the evidence upon which these conclusions are based might be of interest to the parties to the litigation but would be of no value to students of the decisions of this Court, and we deem it unnecessary to encumber our reports with such a discussion. Suffice it to say that the evidence submitted by defendant fully sustains its contentions, and that the only witness called by the plaintiffs who testified concerning material matters, was not only contradicted by every other witness who testified regarding them, by documentary evidence, and by logical inferences to be drawn from the evidence, but by his own previous sworn statement.
Cases involving questions of fact alone are not ordinarily considered on report, but under the circumstances presented here, we regard it our duty to finally dispose of this litigation without compelling the parties to incur further expense.
Decree accordingly.