Bailey v. Hope Insurance

| Me. | Jul 1, 1869

Apuíueton, O. J.

—The defendant corporation was chartered by the Legislature of Rhode Island, and has its place of business at Providence in that State. It has an agent or agents at Portland, and has fully complied with the provisions of R. S., c. 49, § 39, in reference to the agents of foreign insurance companies.

The premises insured were owned by Bailey & Mitchell. It appears that a policy was issued to the firm, but Mitchell declined to have anything to do with it. The plaintiff-thereupon, on July 29, 1867, wrote to Messrs. Dow, Stackpole & Co., the agents of the defendant corporation at Portland, advising them that his partner Mitchell did not wish to be insured, and requesting a policy to be made out to him.

On July 30, 1867, Dow, Stackpole & Co., forwarded the policy in suit'to the plaintiff It is dated at Portland, and countersigned by the agents of the defendant.

The plaintiff’s hotel was in New Hampshire, where he resided. The Insurance company was chartered by the Legislature of Rhode Island. The policy was issued at Portland.

The defendant corporation is carrying on business in this State by its duly authorized agents. In all the contracts the agents make, in the course of such agency, the case is the same as though the principal were present and made them. The principal is constructively present in the agents’ person. The contract is to be regarded as if made at the place where the business is transacted by the agent or agents.

The negotiation in this case was by letter. The plaintiff requested to be insured, and that a policy, the terms of which were understood by their previous correspondence, should be sent him. The agents of the defendant forwarded the policy the next day. The contract is completed by sending the policy as requested. When the agents of the defendant forwarded their policy, the defendant became liable,—and, as the contract was complete and finished in this State, its laws must govern.

The defendant corporation chose to have an agency in this State. It has made itself liable to suits here. The plaintiff is seeking to enforce his contract here. The defendant having received the profits of insurance, — having agreed to be amenable to the jurisdiction of the courts of this State, and having contracted within it, and subject to its laws, and the suit having been brought here, its rights must be determined by the terms of the contract, except so far as the same may be affected by the paramount legislation of this State. Emery v. Piscataqua F. & M. Ins. Co., 52 Maine, 322.

It is objected that the preliminary proofs do not comply with the conditions of the policy. By the 11th condition, the insured were required to give a statement of the loss, &c., to procure a certificate under the hand of a magistrate or notary public, (most contiguous to the place of fire, and not concerned in the loss, &o.,) that he is acquainted with the character and circumstances of the person or persons insured, and has made diligent inquiry into the facts set forth in their statement, and knows, or verily believes that the insured, by misfortune and without fraud or evil practice, have sustained by fire such loss or damage, and to the amount therein mentioned. This the plaintiff has not done. If the policy were to control, he would be obliged to procure such certificate, and if he could not, the action could not be sustained.

But the plaintiff is relieved from the necessity of procuring the certificate of the nearest magistrate, by the Act approved March 15, 1861, c. 34, § 5, which requires only that the statement of the insured should be sworn to " before some disinterested magistrate, who shall certify that he has examined the circumstances attending the loss, and has reason to, and does believe such statement is true.”

By the Act of 1861, c. 34, § 5, "all provisions contained in any policy or contract of insurance, in conflict with any of the provisions of this Act, are hereby declared null and void, and all contracts of insurance hereafter made, renewed or extended, in this State, or on property within this State, shall be subject to the provisions of this Act.” The policy, in suit, was made and extended in this State. Both parties must be regarded as contracting subject to the requirements of this Act. Whatever is in conflict with the Act is null and void. Its provisions control the terms of the policy. It was not necessary, then, to make the preliminary proofs as required by the policy.

But it is urged that the plaintiff has not complied with the statute, § 5, and therefore he must fail. The statement of the insured is within its terms and is duly sworn to. The magistrate before whom the statement was made and sworn to, certified that he "examined the circumstances of the fire or damage as alleged,” that he was " well acquainted with the character and circumstances of the insured,” and that he verily believed " that he has by misfortune and without fraud or evil practice, sustained loss and damage on the property insured, to the amount of ten thousand four hundred dollars.”

It is insisted that this is not a compliance with § 5, which requires the magistrate to certify "that he has examined the circumstances attending the loss, and has reason to and does believe such statement to be true.”

It may be, that this certificate is not strictly a compliance with the requirements of the statute. However that may be, the defendants, by their own showing,'have waived the right to insist on this objection. In the notice of the. secretary, under date of Dec. 4, 1867, he takes the objection that the certificate of the magistrate nearest the fire has not been produced, and adds, "without this, no claim is payable.” But the defendants have become amenable to this jurisdiction and must submit to its laws. No objection, it will be observed, is made to the statement of the insured that it is not sufficiently full, clear and precise. None is made to the form of the magistrate’s certificate. Had there been, the objections might have been remedied. The only objection is, that the certificate of the nearest magistrate is not obtained. There is no intimation that it is in any respect insufficient. The complaint is, that the magistrate making it, is the wrong one, and that is all. The defendants’ objection is answered by the statute, so far as relates to the magistrate. No suggestion was made that the certificate was defective in substance. The defendants are not to be permitted at this late day to take this objection. ' They must be regarded as having waived it by the notice before referred to; Bartlett v. Union Mut. Fire Insurance Co., 46 Maine, 500; Lewis v. Monmouth Mut. Fire Ins. Co., 52 Maine, 498.

The exceptions of the defendants must be overruled.

The plaintiff procured an insurance " on his new three story frame hotel,” &c. This insurance in its terms relates only to his legal title, which was one-half. An insurance prima facie covers only the legal interest of the insured. 3 Kent, 258. The correspondence refers to the legal title only. Nothing indicates, on the part of the insured, that there was any intention to effect a policy on any equitable interest he might have, as against his partner, on an adjustment of the affairs of the firm. The policy in its terms covers no such interest, and there is no reason to suppose it was intended to cover such interest.

Plaintiff’s and defendants’ exceptions overruled.

Walton, Dickerson, Barrows, Daneorth and Tapley, JJ., concurred.