| Mass. | Feb 28, 1899
The sole defence relied upon at the trial was that the plaintiff omitted to state in his application for insurance the fact that some fifteen years before he had sprained his left ankle, so that he applied to it some liniment and it troubled him for three or four hours. Notwithstanding the testimony of the defendant’s examining physician to the effect that a sprain never fully recovers, that such an injury to one leg would make an injury to the other leg more probable fifteen years afterwards, and that if the insurer had been informed of the previous sprain it would not have written a policy covering injuries to the ankle, we think it was competent for the court to find as a fact that the omission of the plaintiff to state the previous sprain was not a misrepresentation which increased the risk of loss. The evidence that the plaintiff did in fact state the circumstance of the former sprain to the agent who assisted him in making out his application, and did not put it in the application because the agent said it was too trifling, and so did not write it down, would further justify a finding that the omission or misrepresentation was not made with actual intent to deceive. The rights of the parties are governed by the provisions of St. 1895, c. 281, relative
Exceptions overruled.