The record presents two issues: (1) Is the plaintiff precluded from recovery because the money collected was stolen, without negligence or fault of the defendant Hanaford, from a safe furnished by the plaintiff for his use? and (2) If the plaintiff is entitled to recover, shall interest be allowed from the date of the loss, from the date Hanaford resigned from his office on September 1, 1923, or from the date of the writ? [1] It is well settled that a treasurer is a public officer who is required to give bond with sureties for moneys of the town in his custody. It was said in Railroad National Bank v. Lowell, 109 Mass. 214, at page 216: "The treasurer of a city or town is an independent accounting officer, by statute made the depositary of the moneys of the city or town the legal possession of the specific moneys in his hands, from whatever source, is in him. Hancock v. Hazzard, 12 Cush. 112. Coleraine v. Bell, 9 Met. 499. All moneys of the city or town he holds as its property, and exclusively for its use." The law so stated is quoted with approval by Knowlton, C. J., in Newburyport v. Spear, 204 Mass. 146, at page 149, 90 N. E. 522, 134 Am. St. Rep. 652. [2] The question of the liability of a tax collector and treasurer of a town on his official bond was settled by Hancock y. Hazzard, 12 Cush. 112. In that case the defendant was collector and treasurer of the plaintiff town; he collected money belonging to the town, and while it was in his possession as treasurer, without any negligence on his part, it was stolen from his dwelling house. In a per curiam opinion the court said (page 114) that: tional Bank v. South Hadley, 128 Mass. 503, 507; Boston v. Turner, 201 Mass. 190, 196, 87 N. E. 634; Newburyport v. Spear, supra; Lowell v. Stiles, 232 Mass. 341, 343, 122 N. E. 412; Smythe v. United States, 188 U. S. 156, 171, 23 S. Ct. 279, 47 L. Ed. 425; Tillinghast v. Merrill, 151 N. Y. 135, 45 N. E. 375, 34 L. R. A. 678, 56 Am. St. Rep. 6; Trustees of the Village of Bath v. McBride, 219 N. Y. 92, 113 N. E. 789; People v. McGrath, 279 Ill. 550, 117 N. E. 74; Commonwealth v. Comly, 3 Pa. 372. See, also, Dillon on Municipal Corporations (5th Ed.) vol. 1, § 434; Commissioners v. Jones, 18 Minn. 199 (Gil. 182); Halbert v. Commissioners, 22 Ind. 125. The conclusion we have reached is not contrary to the decisions of the Supreme Court of the United States. United States v. Prescott, 3 How. 578, 11 L. Ed. 734; United States v. Thomas, 15 Wall. 337, 21 L. Ed. 89; Smythe v. United States, 188 U. S. 156, 23 S. Ct. 279, 47 L. Ed. 425. We are aware that there are decisions which have reached a different result. Cumberland v. Pennell, 69 Me. 357, 31 Am. Rep. 284; Wilson v. People, 19 Colo. 199, 34 P. 944, 22 L. R. A. 449, 41 Am. St. Rep. 243; State v. Gramm, 7 Wyo. 329, 52 P. 533, 40 L. R. A. 690. The fact that an office, with a safe and vault in which to keep moneys collected by Hanaford, was furnished to him by the town does not affect the result. He was not obliged to keep funds in the safe or vault; he could do so or not; he could place them where he saw fit; they were in his possession and were under his sole control and as treasurer he was personally liable for them until he had paid them over according to the order of the authorized officers of the town. Newburyport v. Spear, supra. "A collector of taxes, by accepting the office, takes the risk of the safe-keeping of the money he has actually received. His obligation is not [3] The defendant Hanaford was not reregulated by the law of bailments, and the cas-quired to put the money in his hands at interes cited to that effect are inapplicable. He is est; and until demand was made upon him, a debtor, an accountant, bound to account for was not in default or chargeable with inand pay over the money he has collected. The loss of his money, therefore, by theft or oth-terest. Bank of Brighton v. Smith, 12 Allen, erwise, is no excuse for nonperformance; this is founded on the nature of his contract, and considerations of public policy." 243, 253, 90 Am. Dec. 144; Lowell v. Stiles, supra. No demand was made until the commencement of this action, and interest ought not to have been allowed before the date of the writ. In accordance with the terms of the report, judgment is to be entered on the verdict; and execution is to issue for $2,086.88, with interest thereon from the date of the Hancock v. Hazzard was the earliest case on the question now before us to be considered in this commonwealth; it has been cited with approval in later decisions of the court, and in other jurisdictions. Railroad National Bank v. Lowell, supra; Egremont writ. v. Benjamin, 125 Mass. 15, 19; Agawam Na So ordered. (146 N.E.) HERMAN v. CITY OF NEW BEDFORD. NICKLAS v. SAME. (Supreme Judicial Court of Massachusetts. Bristol. Jan. 10, 1925.) 1. Eminent domain 224-Trial judge authorized to grant new trial in condemnation proceeding; "civil actions." As term "civil action" includes petitions for damages sustained in condemnation proceeding, judge was authorized under G. L. c. 231, § 127, to grant new trial for any cause for which new trial may be granted. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Civil Action-Case-Suit, etc.] 2. New trial 162(1)—Prevailing party must first be given opportunity to remit part of verdict adjudged to be excessive. Verdict should not be set aside as excessive until prevailing party has first been given opportunity to remit part adjudged to be excessive. 3. Eminent domain 157-Petitioners assenting thereto, city cannot question apportionment of damages between fee owner and lessee.. In view of G. L. c. 79, § 22, where petitions by fee owner and lessee for damages for taking of land for street were consolidated, petitioners assenting thereto, city could not question authority of judge to apportion damages as reduced by remittitur, especially where sum allotted was not greater than damage to each estate considered apart from the other. 4. Eminent domain 174-Limitation is of right as well as remedy. 172-Failure to 8. Eminent domain an In petition by owner under G. L. c. 79, §§ 23-34, to assess damages for taking private property failure of city to answer did not confer jurisdiction on court, where petition was not filed within time specified in section 16. Exceptions from Superior Court, Bristol County; H. T. Lummus, Judge. Separate petitions by Abrahan Herman and by Joseph W. Nicklas against the City of New Bedford for damages for taking of realty for widening of street. Petitions, under G. L. c. 79, §§ 23-34, were consolidated for trial. Jury assessed damages and apportioned it between petitioners. In overruling motion for new trial, juge entered verdicts for petitioners after remittitur by them and respondent excepts. Exceptions in Herman's case sustained. Exceptions in Nicklas' case overruled. Solomon Rosenberg, of New Bedford, for petitioner Herman. C. P. Ryan, of Fall River, for petitioner Nicklas. Benj. B. Barney, of New Bedford, for respondent. PIERCE, J. The petitioner Herman by a petition filed April 27, 1922, alleging entry "on or about May 1, 1921," sought to have damages awarded for taking of realty for the widening of Second street in New Bedford, March 11, 1921. The petitioner Nicklas was the holder of leasehold rights under the petitioner Herman, who was seized of the premises in fee, and Nicklas also owned the building on said leasehold estate. Under St. 1918, c. 257, § 187, subsecs. 23 to 31, now G. L. c. 79, §§ 23 to 34, inclusive, the petition of Herman was ordered to be tried with the petition of Nicklas to a jury at New Bedford. No answer or other pleading was filed by the Under St. 1918, c. 5. Eminent domain 174-Court without ju- respondent in either case. risdiction after expiration of term within 257, § 187, subsec. 29, the jury found the towhich petition for damages must be brought. tal amount of damages sustained by the ownWhere statute limits time in which petitioners of such property to be $23,044 which infor damages for taking private property may cludes damage and interest at 4 per cent. be brought, court has no jurisdiction to enter- from April 1, 1921, to May 7, 1924. Under tain it after term expires. G. L. c. 79, § 16, providing that petition for assessment of damages under section 14 may be filed within one year after right to damages vests is limitation of right as well as remedy. the same provision of the statute the jury 6. Eminent domain 192-Matters of defense apportioned to Herman the sum of $12,083, and avoidance must be pleaded. In petition under G. L. c. 79, §§ 23-34, by owner for damages for taking of land, if city desires to contest right of petitioners to have court or jury assess alleged damages, section 22 requires it to plead all matters of defense and avoidance. 7. Eminent domain 185-Failure of city to appear not default. In petition under G. L. c. 79, §§ 23-34, to assess damages for land taken to widen street failure of city to appear does not result in default. and to Nicklas the sum of $10,961, which last sum is made up of an allowance of $3,372 for damages to the building of Nicklas, including therein interest at 4 per cent. from April 1, 1921, to May 7, 1924; and the remainder, as the amount of damage to the leasehold estate, including interest as aforesaid. At the trial, the petitioner introduced as a part of his case the testimony of the city clerk that the taking of the realty was by order of March 11, 1921, and that the entry for the purpose of construction was made April For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 2, 1921. At the conclusion of the petitioner's | the estate be assumed to be correct, it is not case, the respondent filed a motion in the contended that the apportionment between Herman Case to direct a verdict in the following language: This motion was considered by the judge after the introduction of the respondent's evidence as to value and at the conclusion of the presentation of the respondent's case, and was thereupon by said judge denied. The respondent duly filed a motion that the verdict be set aside and a new trial ordered for the following reasons: the estates as a fact does not accurately represent the damage to each estate. The petitioners assenting thereto, the respondent cannot question the authority of the judge to make an apportionment, especially where, as here, there is no evidence that the sum allotted is greater than the damage to each estate considered apart from the other estate. G. L. c. 79, § 22; Edmands v. Boston, 108 Mass. 535, 547; Boston v. Robbins, 126 Mass. 384; Providence, Fall River & Newport Steamboat Co. v. Fall River, 187 Mass. 45, 50, 72 N. E. 338; Cornell-Andrews Smelting Co. v. Boston & Providence Railroad, 215 Mass. 381, 389, 102 N. E. 625. [4-8] In the case of Herman the motion to dismiss should have been granted. G. L. c. "(1) That the verdict is against the evidence 79, § 16, provides that a petition for the asand the weight of the evidence. "(2) That the verdict is against the law. '(3) That the damages as found by the jury are excessive." sessment of damages under section fourteen "may be filed within one year after the right This statute to such damages has vested." is a limitation of the right as well as a limitation of the remedy. Sterling v. Frederick After a hearing the judge made the follow- Leyland & Co., Ltd., 242 Mass. 8, 13, 136 N. ing order: "The respondent's motion for a new trial is overruled, except upon the ground that the damages are excessive, and upon that ground I find the damages to be excessive and order the said verdict to be set aside, unless the pecess of $17,456.38, the excess above which amount I deem to be excessive; and the petitioners consenting thereto, verdict is entered for the petitioners for said sum of $17,456.38; and with the consent of the petitioners, the said sum shall be apportioned as follows: $7, 883.43 to the petitioner Herman, and $9,572.95 to the petitioner Nicklas." titioners shall remit all of said verdict in ex The petitioner filed a consent "to the entry of the above finding and verdict." The case is before this court on the exceptions of the respondent to the action of the judge. [1, 2] As the term "civil actions" includes petitions for damages sustained in condemnation proceedings, Howard v. Proprietors of Locks and Canals, 12 Cush. 259, 262, 263, it is plain the judge had authority under the provisions of G. L. c. 231, § 127, to grant a new trial "for any cause for which a new trial may by law be granted"; but "A verdict shall not be set aside as excessive until the prevailing party has first been given an opportunity to remit so much thereof as the court adjudges is excessive." [3] The finding of the judge as to the entire damage to the estate of the petitioners is supported by the reported testimony of witnesses, and is not open to the charge of the respondent that it is "an amount not calculated and determined upon evidence introduced in the case." If the entire damage to E. 60. Where a statute limits the time in which a petition for damages must be brought, the court has no jurisdiction to entertain a petition after the term has expired. Lancy v. Boston, 185 Mass. 219, 70 N. E. 88; Partridge v. Arlington, 193 Mass. 530, 79 N. E. 812; Sterling v. Frederick Leyland & Co., Ltd., supra. The provision of G. L. c. 79, § 22, that "any defense to the petition * must be pleaded within thirty days after the return day of the subpoena," is a new provision relating to procedure in suits seeking an award of damages for land taken under the right of eminent domain, and was intended to assimilate the practice in such proceedings to that which is in use under the mill acts. Charles v. Porter, 10 Metc. 37; Howard v. Proprietors of Locks and Canals, 12 Cush. 259; Darling v. Blackstone Manuf. Co., 16 Gray, 187; Hadley v. Citizens' Savings Institution, 123 Mass. 301; Willard v. Boston, 149 Mass. 176, 21 N. E. 298; (1918) Commissioners' Report to Consolidate and It reArrange the General Laws, p. 29. quires that substantive and affirmative matters of defense and avoidance shall be pleaded, if the respondent desires to contest the right of the petitioners to have the court or jury assess the alleged damage. The failure of the respondent to appear does not result in a default. G. L. c. 79, § 22. And a failure to answer does not confer jurisdiction upon the court. It results that the exceptions taken by the respondent in the case of Herman must be sustained. And in the case of Nicklas they are overruled. (146 N.E.) CLARK v. MUTUAL LIFE INS. CO. OF (Supreme Judicial Court of Massachusetts. 1. Insurance 646 (3)-Burden of proof was on beneficiary to establish that insured had no illness since date of policy. Where policy of life insurance was reinstated on insured's application, burden was on beneficiary to establish that insured had no illnesses, diseases, or injuries, nor had been treated by nor consulted a physician, since date of policy. 2. Insurance365(1)-Statute relating to misrepresentations in negotiation of contract has no application to revival after lapse. G. L. c. 175, § 186, relating to mispresentations or warranties, has application only to time when policy is issued, is not applicable to certificate of insurability to revive policy after lapse in payment of premiums. 3. Insurance365(1)-False statement In application to revive lapsed policy held to defeat recovery. Where insured made personal application for reinstatement of lapsed policy, in which he falsely stated that he had had no illnesses or diseases during past five years or since date of policy, proof of untruth of his statement defeated recovery on policy by beneficiary. 4. Appeal and error 1175(5)-Where motion for directed verdict should have been allowed, judgment will be entered for movant. Where motion for directed verdict should have been allowed, judgment will be entered for movant, under G. L. c. 231, § 122. answers are true and are offered to the Mutu- diseases, injuries or surgical operations have In reply to the question, "What illnesses, you had during the past five years or since the date of said policy, if less than five years in force?" the insured answered, "None." In answer to the question, "State every physician or practitioner who has prescribed for or treated you, or whom you have consulted during the past five years or since the date of said policy, if less than five years in force," he replied, "None." * The plaintiff put in evidence the policy and proof of loss. She testified that the insured died in September, 1921; that she never knew he had consulted a doctor "for any physical ailment up to the time of his death, except when he hurt his arm in the store lifting a barrel that this accident happened after the policy of insurance was issued; that he had gone to see a physician, Dr. Hopkins, on account of his arm, after lifting a barrel of sugar, but she could not tell just when it was; she knew he went but didn't know what for." She further testified that Dr. Hopkins called at her home in February, 1920, and she "told the doctor [that Bassett] * * * had a cold, and he told him to take care of it, that was all"; that her husband visited Dr. Hopkins at his office, for his arm. Another witness testi Exceptions from Superior Court, Essex fied that the accident to Bassett's arm hapCounty; F. J. Macleod, Judge. Action of contract by Anna Bassett Clark against the Mutual Life Insurance Company of New York to recover on policy of life insurance issued on the life of plaintiff's husband. Defendant's motion for directed verdict was denied, and it excepts. Judgment rendered for defendant. R. L. Sisk, of Lynn, for plaintiff. CARROLL, J. In September, 1919, the defendant issued an insurance policy on the life of George W. Bassett, payable in the event of his death to his wife, the plaintiff in the present action. The policy lapsed because of default in payment of the premium due September 22, 1920, and a "personal application" for reinstatement without medical examination was made by the insured on November 6, 1920. This application provided: "I agree on behalf of myself and of every person who has or shall have any interest in said policy that the foregoing statements and pened in February or March, about eight or In the interrogatories to the defendant, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes these doctors treated said Bassett for his heart trouble." Dr. Hopkins, called by the defendant, testified that he attended Bassett professionally February 9, 1920, at his (Bassett's) home; he was then suffering from a cold; that he saw him again February 12, when he had acute bronchitis; that on February 20 he came to the doctor's office, when an examination was made and it was found that the insured "showed marked mitral regurgitation with a systolic murmur"; "that the mitral valve was leaking." He told Dr. Hopkins that he had seen a doctor in Wakefield and in Roxbury; that he had been examined at the Homeopathic Hospital in Boston and a blood count was taken; "that Dr. Caldwell advised him to have a complete physical examination as soon as he came home." At the close of the evidence the defendant moved that the court direct a verdict for the defendant, which motion was denied and defendant excepted. [1] There was no question that the policy had lapsed. It was necessary, therefore, for the plaintiff to prove the truth of the facts stated in the "Application for Reinstating Policy Without Medical Examination." The insured agreed as a condition precedent to his reinstatement that every one of his answers was true, that these answers were material to the risk. The burden of proof was upon the plaintiff to establish that the insured had no "illnesses, diseases [or] injuries" since the date of the policy, and had not been treated or prescribed for, or had not consulted a physician since the date of the policy. The plaintiff's own testimony showed that Bassett had gone to Dr. Hopkins' office on account of an injury to his arm, although she stated this was after the date of the policy, probably meaning by this statement the date of its renewal; but she testified that Dr. Hopkins was at her home in February, 1920; that her husband was suffering from a cold, and that Dr. Hopkins treated him, and the proofs of death, which she introduced as a part of her case, showed that the insured died of heart failure, and had been prescribed for by Dr. Hopkins and two other physicians during the two years preceding his death. [2] G. L. c. 175, § 186, providing in substance that no misrepresentation or warranty made in the negotiation of a policy of in surance would be deemed material, or defeat the policy, unless the misrepresentation or warranty was made with intent to deceive, or unless the matter misrepresented or made a warranty, increased the risk of loss, is not applicable to the facts in this case: that statute does not apply to an application for reinstatement, it has reference only to the representations made when the policy is is sued. By [3] In an application for reinstatement such as the one before us the parties are bound by the terms of the contract. They agreed that all the answers were material to the risk, and were true. If the insured consulted a physician, or was treated by one, or had been prescribed for by a physician since the date of the policy and before the date of the application, or if the deceased had an illness, disease or injury of any kind during that time, his answers were not true. the plaintiff's own evidence, by which she was bound, it appeared that the insured had consulted a physician for medical treatment in February, 1920, and he then had an "illness" of some kind. If he had a cold at this time and a physician was consulted, or if he was treated by the physician, that fact was material. In addition to this, the testimony of Dr. Hopkins was not contradicted in its essential particulars: he testified that the insured was attended by him and found to be suffering from heart trouble in February, 1920, before the application for reinstatement was signed. Holden v. Metropolitan Life Ins. Co., 188 Mass. 212, 74 N. E. 337. The statements made by the insured in the request for reinstatement were not true. The burden resting on the plaintiff was not sustained. Having failed to comply with the conditions precedent mentioned in the application, the policy was not revived and the plaintiff could not recover. Rainger v. Boston Mutual Life Association, 167 Mass. 109, 44 N. E. 1088; Fondi v. Boston Mutual Life Ins. Co., 224 Mass. 6, 7, 112 N. E. 612; Reidy v. John Hancock Mutual Life Ins. Co., 245 Mass. 373, 139 N. E. 538. [4] The motion for a directed verdict should have been allowed; and under G. L c. 231, § 122, judgment is to be entered for the defendant. So ordered. |