Rev. Laws, c. 118, § 73, provides that every life policy which contains a reference to the application, must have attached thereto, a correct copy of the application, and that unless so attached the same shall not be considered a part of the policy, and that each application for such policy shall have printed upon it in bold-faced type, "Under the laws of Massachusetts, each applicant for a policy to be issued hereunder is entitled to be furnished with a copy of this application attached to any policy issued thereon." Held, that it was the intent to inform an insured that he was entitled to a copy of the application, and when that is done the application froms a part of the contract, although the words required to be printed are omitted.

2. PLEADING-REPLICATION-NECESSITY NECESSITY FOR PLEADING IN REPLY-NEW MATTER IN ANSWER.

Though by Rev. Laws c. 173, § 31, plaintiff may reply to new matter in the answer, the statute expressly provides that new matter in avoidance of the action shall be considered denied without a replication.

[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 3212-325.]

3. INSURANCE-FORFEITURE OF POLICY-SUI

CIDE.

A provision in a life policy rendering it void in case insured should die by his own hand, "sane or insane" covered every case of suicide, irrespective of the state of insured's mind.

[Ed. Note. For cases in point, see vol. 28, Cent. Dig. Insurance, § 1159.]

4. SAME-ACTION ON POLICY-EVIDENCE-SUF

FICIENCY.

In an action on a life policy, evidence held to show the suicide of insured.

Exceptions from Superior Court, Middlesex County; Wm. B. Stevens, Judge.

Action by one Moore against the Northwestern Mutual Life Insurance Company. Verdict for defendant, and plaintiff brings exceptions. Exceptions overruled.

Wm. H. Bent, for plaintiff. Horace G. Allen and Norman M. Nye, for defendant.

LATHROP, J. This is an action of contract on a policy of life insurance issued to Walter T. Moore on May 27, 1904, by a foreign corporation doing business here, under an agent duly authorized, and the policy was delivered here. Both parties have argued the case on the assumption that the policy is a Massachusetts contract, and we so treat it.

On July 29, 1904, Walter T. Moore, by virtue of the power reserved to him in the policy, assigned the same to his wife Faustina M. Moore, the plaintiff in this action.

The answer contained a general denia! and set up in defense that Walter T. Moore died by his own hand, within one year from the date of the policy, and also set up the following agreement contained in the application for the insurance, signed by Walter T. Moore: "And I do further agree that if within two years from the date of said policy I shall pass south of the Tropic of Cancer, or shall within one year from the date of said policy whether sane or insane die by my own hand, then and in every such case any policy issued on this application shall be null and void."

The plaintiff filed a replication to the new matter set up in the answer, denying that the application complied with Rev. Laws, c. 118, § 73, and did not form part of the policy, and denied that Walter T. Moore died by his own hand.

Later the plaintiff amended the replication, by adding thereto the following clause: "And the plaintiff further says that if the defendant shall introduce evidence tending to show that the death of Walter T. Moore was self-inflicted or that the instrumentality was operated by his hand, then the plaintiff says that the death was caused under such a combination of circumstances that it was not the result of the will and intention of the deceased, adapting the means to the end and contemplating the physical nature and effects of the act; that it was the result of a blind and irresistible impulse over which the will of the deceased had no control and was not an act of volition, that he did not know or understand the nature and consequences of the act."

This amendment was demurred to and the demurrer sustained.

At the trial in the superior court there was evidence tending to show that Mr. Moore was in financial difficulty in Lowell; that he left Lowell on November 22, 1904. the day on which the directors and some of the creditors of the Lowell Coal Company, of which Moore was manager and which was in financial difficulty, were to have a meeting, went to his summer place in Amherst, N. H., which he had closed for the season about a month before, but which was then occupied by his man looking after his live stock and other property there, arrived in the afternoon, talked with his hired man about his troubles and the possibility of having to sell his place, directed his man to go for his team to drive him to the station, and then went into the house alone; that a short time thereafter, after waiting for him to come out, his man went into the house, passed through the dining room and kitchen into the woodshed. where he found Mr. Moore lying on his back on the ground, dead; that there was

a rifle in an iron vise at one end of a work bench, and attached to the trigger was a string which apparently had been passed through a hasp; that Moore had been shot through the body and the bullet was found imbedded on the opposite side of the shop at a spot toward which the rifle was pointed; that several hours thereafter his man found lying upon Moore's overcoat in the dining room a piece of paper in Moore's handwriting but not signed by him, bidding good-bye to his mother and wife, and giving directions as to where to telephone.

During the course of the trial the plaintiff offered in evidence the original policy expressly excluding from his offer two photographic copies annexed thereto by attachment, one of which was headed "Application to the Northwestern Mutual Life Insurance Company of Milwaukee, Wisconsin." The other photographic copy was of the declaration made to the medical examiner. The defendant objected to the offer and the court stated, "I will allow the entire contract put in, and I will rule later upon the effect of the application," to which ruling the plaintiff excepted. Subsequently the defendant offered the original application, which the court admitted against the objection and exception of of the plaintiff. Neither the original application nor the copy had upon it in large, bold-faced type, nor in any form of type or writing, the words: "Under the laws of Massachusetts, each applicant for a policy of insurance to be issued hereunder is entitled to be furnished with a copy of this application attached to any policy issued thereon."

The plaintiff made six requests for instructions, which were not given.

The jury returned a verdict for the defendant; and to the question "Did the deceased Walter T. Moore die intentionally by his own hand?" the jury answered "Yes."

1. The first question which it is necessary to consider is whether the application forms part of the policy. This in various ways is the subject of the six requests which were refused in the court below. The answer to the question depends upon the construction to be given to the following words which form a part of the Rev. Laws, c. 118, 73: "Every policy which contains a reference to the application of the insured, either as a part of the policy or as having any bearing thereon, must have attached thereto a correct copy of the application, and unless so attached the same shall not be considered a part of the policy or received in evidence. Each application for such policy shall have printed upon it in large boldfaced type the following words: 'Under the laws of Massachusetts, each applicant for a policy of insurance to be issued hereunder is entitled to be furnished with a copy of this application attached to any policy issued thereon.'"

We are of the opinion that it was the

intention of the Legislature to inform the insured that he was entitled to have a copy of the application attached to his policy, and that when this was done, the application formed a part of the contract, although the words required to be printed in boldfaced type were omitted. If the Legislature had intended otherwise a very slight change in the language of the section would have effected their intention. We are of opinion therefore that the application was rightly admitted, and that the rulings requested were rightly refused.

2. The remaining question is raised by the demurrer to the amended replication. While by the Rev. Laws, c. 173, § 31, the plaintiff may at any time before trial file a replication to the answer "clearly and specifically stating any facts in reply to new matter therein," yet as a general rule no further pleading is required after the answer. And the same section goes on to provide: "Any new matter in avoidance of the action which the answer contains shall be considered to be denied by the plaintiff without a replication, unless the court, upon motion of the defendant, requires him to reply thereto, and to state what part, if any, he admits or denies."

provide:

In our opinion the demurrer to the amended replication was rightly sustained. Under the old form of policy which exempted from the terms of the contract cases of death by suicide or by the hand of the assured, there was much conflict in the authorities, and in Daniels v. N. Y., N. H. & H. R. R., 183 Mass. 393, 397, 67 N. E. 424, 62 L. R. A. 751, it was said by Chief Justice Knowlton, that all agreed "that death self-caused in an uncontrollable frenzy, without knowledge or appreciation of the physical nature of the act, would not be a death by suicide or by one's own hand." It was further said to be the doctrine of this court as stated in Dean v. American Ins. Co., 4 Allen, 96, and in Cooper v. Massachusetts Ins. Co., 102 Mass. 227, 3 Am. Rep. 451, following certain English cases, "that if death is the result of volition by one who has a conscious purpose to end his life, and has intelligence to adapt means to ends, it is his own act within the meaning of such a contract, even though he is so far insane as not to be morally responsible for his conduct." It was also said that in some other jurisdictions, including the Court of Appeals of New York and the Supreme Court of the United States, it had been held that "if one, by reason of his insanity, is unable to appreciate the nature and qualities of his own act in its relations to the moral world, so that he is criminally responsible for it, he does not commit sulcide or cause death by his own hand within the meaning of such a policy, if he deliberately and willfully takes his own life,"

To meet the difficulty caused by this conflict of decisions, the words sane or insane

were introduced into policies of insurance.

In Bigelow v. Berkshire Life Ins. Co., 93 U. S. 284, 23 L. Ed. 918, where the policy contained the clause avoiding the policy if the insured should die by suicide, sane or insane, the defendant set up in its answer that the insured died from the effects of a pistol wound inflicted upon his own person by his own hand, and that he intended by this means to destroy his life. The replication alleged that the insured, when he inflicted the pistol wound upon his person by his own hand, was of unsound mind, and wholly unconscious of his act. A demurrer to the replication was sustained. It was said by Mr. Justice Davis in delivering the opinion of the court, that the words "sane or insane" must receive a reasonable meaning, and further: "Nothing can be clearer than that the words 'sane or insane' were introduced for the purpose of excepting from the operation of the policy any intended self-destruction, whether the insured was of sound mind or in a state of insanity."

In De Gogorza v. Knickerbocker Life Ins. Co., 65 N. Y. 232, the words "sane or insane" were given their full meaning. The trial judge had instructed the jury that "if the act causing the death of the assured was the involuntary act of one incapable of exercising his will, then the company would be liable." This was held to be erroneous. And in an elaborate opinion of the court it is said: "We prefer to place our decision upon the ground that the words of the proviso in the policy before us, by plain rules of interpretation, exempt the defendant from liability. That this language, in view of previous decisions, was inserted for such a purpose, cannot be doubted, and that it was agreed to by both the insured and the insurer is not questioned, and that it is a provision allowed by law, no one denies. We are to say from these words what the parties must have intended, and we cannot properly say that additional words having no meaning were inserted in the contract, and if they mean anything, it is just what the words commonly import, and that is, if death ensues from any physical movement of the hand or body of the assured proceeding from a partial or total eclipse of the mind, the insurer may go free. We are not altogether unmindful of the force of the proposition that a man does not die by his own hand who has not sufficient mind to will his own death, and it is not perhaps, entirely easy to see in what precise words in our language the idea may, be accurately and artistically expressed that a totally insane man may take his own life. But the question seems to involve more-the refinement of language-than the application of practical sense, and we are of the opinion that, in the common judgment of mankind, it will

See,

be considered, that when a totally insane man blows his brains out with a pistol that he will be said to have died by his own hand within the meaning of a policy such as we have now under consideration." also, Travellers' Ins. Co. v. McConkey, 127 U. S. 661, 8 Sup. Ct. 1360, 32 L. Ed. 308; Mutual Life Ins. Co. v. Kelly, 114 Fed. 268, 280, 52 C. C. A. 154; Clarke v. Equitable Assur. Soc., 118 Fed. 374, 55 C. C. A. 200; Pierce v. Travellers' Ins. Co., 34 Wis. 389; Billings v. Accident Ins. Co., 64 Vt. 78, 24 Atl. 656, 17 L. R. A. 89, 33 Am. St. Rep. 913; Scarth v. Security Ins. Co., 75 Iowa, 346, 39 N. W. 658; Mutual Reserve Fund Ass'n v. Payne (Tex. Civ. App.) 32 S. W. 1063, 1066; Adkins v. Columbia Ins. Co., 70 Mo. 27, 35 Am. Rep. 410; Chapman v. Republic Ins. Co., 6 Biss. 238, Fed. Cas. No. 2,606; Tritschler v. Keystone Benefit Ass'n, 180 Pa. 205, 36 Atl. 734; Sargeant v. National Ins. Co., 189 Pa. 341, 41 Atl. 351; Keefer v. Modern Woodmen, 203 Pa. 129, 52 Atl. 164; Sabin v. National Union, 90 Mich. 177, 51 N. W. 202; Scherar v. Prudential Ins. Co. (Neb.) 88 N. W. 687, 56 L. R. A. 611.

On reason and on the authorities, we can have no doubt that the old rule is done away with, and that the words "sane or Of insane" cover every case of suicide. course, a death by shooting may be accidental, but there is nothing in this case to show any accident. The evidence shows clearly a case of suicide, and it makes no difference what the state of mind of the The excepperson committing suicide was. tions must therefore be overruled and the appeal dismissed. So ordered.

(192 Mass. 481)

KEELEY V. BOSTON ELEVATED RY. CO. (Supreme Judicial Court of Massachusetts. Suffolk. June 21, 1906.)

1. MASTER AND SERVANT-INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCE-ASSUMPTION OF RISK-SUFFICIENCY OF EVIDENCE.

In an action for injuries to a servant, owing to his chisel having been brought in contact with a rail which was charged with electricity, evidence held sufficient to warrant a finding that plaintiff was in the exercise of due care and that he did not assume the risk.

2. SAME-NEGLIGENCE OF MASTER.

In an action for injuries to a servant, owing to his chisel having been brought into contact with a rail charged with electricity, evidence held sufficient to warrant a finding that some one representing defendant, and to whom the work had been intrusted, was negligent in permitting the power to be turned onto the rail. 3. SAME-NEGLIGENCE OF FOREMAN.

Where the foreman in charge of a gang of men working on the tracks of an electric railway had been informed by those in charge of the power that the power was turned off, and he instructed a servant to strike a rail with a chisel, and the servant was injured owing to the rail being charged with electricity, there was negligence on the part of the foreman.

Exceptions from Superior Court, Suffolk County; Francis A. Gaskill, Judge.

Action by one Keeley against the Boston Elevated Railway Company. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

Walter B. Grant, for plaintiff. R. A. Sears, James F. Sweeney, and Howard A. A. Wilson, for defendant.

LATHROP, J. This is an action of tort for personal injuries sustained by the plaintiff while in the employ of the defendant. The declaration contained several counts, some at common law, and some under Rev. Laws, 106, § 71. In the superior court the jury returned a verdict for the plaintiff on the second count, which alleged in substance that the plaintiff was set to work in a dangerous place, and while in the exercise of due care, and without being warned of the danger, was injured. At the close of the evidence the defendant asked the court to rule that upon all the evidence the plaintiff could not recover. The judge refused so to rule and submitted the case to the jury, under instructions which we must assume to be correct. The only exception is to the refusal to rule as requested.

The jury were warranted from the evidence in finding the following facts:

The plaintiff employed by the defendant as a night laborer, was set at work as a member of a large gang of workmen, to assist in relaying about 500 feet of the defendant's north-bound track on its elevated structure on Washington street, near Rollins street, Boston. While so employed, and when working near the third rail, so called, where he was directed to work, he was seriously injured by burns from a flash of electricity, caused by his chisel coming in contact with this rail, which at the time the defendant permitted to be alive.

The electric power used to operate the trains on the tracks ran through the third rail, and was generally turned off the rail between the morning hours of 1 o'clock and 5 o'clock, at which time the trains did not run, and the night gangs were at work on the tracks. The voltage used in the third rail was from 500 to 600 volts, and the amperage was very large; the burning effect is from the amperage; a person could be killed by a voltage of 500 volts. The electricity in the third rail could be turned on or shut off, from either or both tracks, entirely at the will or control of the defendant, by switches at the power stations at Sullivan Square or Atlantic avenue, or locally from either track by switches placed from 400 to 500 feet apart. The turning of the switches at Rollins street and at Castle street would have rendered the rail dead at the point of the accident, as it also could have been made dead from the power station. These local switches were under the control of the defendant's engineer, who testified that he

knew of no reason for the use of the power on that night, between those streets.

It was also in evidence that an appliance termed a jumper was in common use at the time of the accident, by which the power could have been cut off from the rail for any assigned distance, even the length of a single rail, along the track, and the third rail made harmless; that the appliance used for this purpose could be handled by any one of ordinary intelligence. The defendant kept for use, when working near the third rail during the day, rubber blankets to throw over the rail, and the electricians at times used test lamps to ascertain whether the power was off or on. The workmen always had general instructions that the power was off while they were at work at night, and each morning about 5 o'clock one of the engineers would come around and state that the power was about to be turned on.

The defendant's engineer and foreman, having control of the power, had full knowledge that a large job was to be done that night. Preparations were being made for some days before the work was done to replace about 500 feet of track; new rails had been brought to the place some days before and placed between the tracks, and in order to reduce the amount of work to be done on the night of relaying them the new rails had been assembled, that is, joined together in sections of three. To insure the completion of the work in one night, all three of the gangs, ordinarily employed in different places on the structure and in the subway, were consolidated and set to work together under the foreman of the plaintiff's gang.

It would have been an easy matter and a reasonable precaution to make the third rail dead along the whole distance which was undergoing repairs. This was the unanimous opinion of the defendant's engineers and managers. The defendant's chief operator received no orders that night to make the third rail dead. Telephones were in use between the various stations on the structure and to the power houses.

On the night the plaintiff incurred his injuries the men were instructed, when they went to work at 1 o'clock, that the third rail was dead. The defendant's records show that the third rails on both tracks were dead at 1:10 a. m. During the night instructions came from Sullivan Square to the electrician in charge of that section where the work was going on, to open the switches at Castle street, which had the effect of putting the power on to the third rail for about half the length of the job. Some of the men were told in a general way that a portion of the rail was alive. The plaintiff was not so informed. The evidence was conflicting as to whether the foreman, Hellen, was so informed. The electrician placed a red lantern at the point of the dividing line between the live and dead rail, but the red lantern would indicate nothing to any one as to which side

of the lantern the rail was alive and dangerous. The plaintiff did not see the lantern which, being at Rollins street, must have been about 250 feet from the place of the accident.

The cause of turning on the power at Castle street was to let a work train go over the cross-over at Castle street to pick up some old rails on the south-bound track at Pelham street and Northampton street. It was not necessary that the power should have been turned on there for that purpose because, by using the south-bound track through the subway, no occasion existed for any power to be applied to the third rail of the north-bound track. The chief operator at the power station testified that it would have been an easy matter to keep the rails dead, and that he received no orders to make them dead on that night.

At the time the plaintiff was injured he was assisting to remove a rail saw from one of the running rails within a few inches of the third rail, and in the performance of his work was directed by his foreman to strike a blow with a chisel (a long-bladed hammer) handed to him by the foreman for the purpose, the use of which necessitated his hitting the third rail. He asked the foreman if it was all right, and in response the foreman told him the rail was dead. The plaintiff had no knowledge of the manner of using the power in the third rail or as to the switches used for that purpose. He had no personal knowledge of whether the power was on the rail, or off, except that he was told it was off.

On these facts we can have no doubt that the jury were warranted in finding that the plaintiff was in the exercise of due care; and that it cannot be said, as matter of law, that the plaintiff assumed the risk. Nor can we have any doubt that the defendant was negligent in turning on the power on the north-bound track when the south-bound track could have been used for the running of the working train. The law applicable to this subject is well stated by Mr. Justice Knowlton in Hopkins v. O'Leary, 176 Mass. 258, 264, 57 N. E. 342, as follows: "The general duty to provide a place for the plaintiff which was reasonably safe, having reference to the kind of business in which the defendant was engaged, was so far personal to himself as a master that he could not escape responsibility by delegating it to another. Toy v. United States Cartridge Co., 159 Mass. 313, 34 N. E. 461. While the plaintiff assumed the obvious risks of the business, he did not assume the risk from the failure of the defendant, either personally or through a superintendent, to perform the ordinary duties of an employer in providing against unnecessary or concealed dangers in places in which laborers were set to work. The jury were rightly permitted to pass upon the question whether the defendant was negligent in this particular. Rogers v. Ludlow

Mfg. Co., 144 Mass. 198, 205, 11 N. E. 77, 59 Am. Rep. 68; Neveu v. Sears, 155 Mass. 303, 29 N. E. 472; O'Driscoll v. Faxon, 156 Mass. 527, 31 N. E. 685; Coan v. Marlborough, 164 Mass. 206, 41 N. E. 238; Burgess v. Davis Sulphur Ore Co., 165 Mass. 71, 42 N. E. 501; Dean v. Smith, 169 Mass. 569, 48 N. E. 619."

This rule applies to corporations as well as to individuals. Rogers v. Ludlow Mfg. Co., 144 Mass. 198, 201, et seq., 11 N. E. 77, 59 Am. Rep. 68; Toy v. United States Cartridge Co. 159 Mass. 313, 34 N. E. 461; Burgess v. Davis Sulphur Ore Co. 165 Mass. 71, 42 N. E. 501.

While there was conflicting evidence on the question whether the foreman of the plaintiff's gang had been informed that the power had been turned on, the jury may have found that he had not been so informed. If so, and he supposed that the rail was dead, the order to the plaintiff was not a negligent one; and the negligence might well be found to be that of some one representing the company, to whom the defendant had intrusted the work, in allowing the power to be turned on to the third rail of the north-bound track, and for whose negligence the defendant is liable.

Exceptions overruled.

(192 Mass. 416)

HOFFMAN v. HOFFMAN et al. (Supreme Judicial Court of Massachusetts. Suffolk. June 21, 1906.)

1. WILLS-VALIDITY-FRAUD AND UNDUE INFLUENCE-EVIDENCE-SUFFICIENCY.

In order to avoid a will on the ground of fraud and undue influence, it is not necessary. that there should be direct evidence.

[Ed. Note.-For cases in point, see vol. 49, Cent. Dig. Wills, § 437.]

2. SAME-BURDEN OF PROOF.

Those attacking a will on the ground of fraud and undue influence have the burden of proof.

[Ed. Note.-For cases in point, see vol. 49, Cent. Dig. Wills, § 389.]

3. SAME-EVIDENCE-SUFFICIENCY.

On an issue as to whether a will was procured by fraud and undue influence, evidence considered, and held sufficient to show that such was the case.

Exceptions from Supreme Judicial Court, Suffolk County.

Judicial proceedings for the probate of the will of one Hoffman, deceased. On appeal from the probate court, verdict was rendered against Effie Hoffman, as executrix, and she brings exceptions. Exceptions overruled.

Frank H. Stewart, for appellants. Robert M. Morse and H. H. Armington, for executrix.

MORTON, J. Two issues were submitted to the jury in this case: (1) "Was the testator of sound and disposing mind and memory?" and (2) "Was the will procured by fraud and undue influence on the part of