122 Mass. 90 | Mass. | 1877
1. The court correctly refused to admit an statement of the value of the premises, made at the time of ¡ curing the policy by the plaintiff’s intestate, notwithstanding defendant offered to show that the assured knew it to be fal . The insurance was made upon a written application which wl i covenanted to be a full and true exposition of all the facts, and circumstances in regard to the condition, situation, value and risk of the property. Although the form used contained a blank for the valuation of the property, none was made by the applicant. The defendant did not require it, and did not incorporate the oral statement of the assured in the application, or make it a part thereof, as it might readily have done. Having entered into the contract without regard to the value of the property insured, leaving that, in case of loss, to be after-wards determined, it cannot now insist that this statement was material. Whether, if there had been a fraudulent overvaluation in the application itself, as in Hersey v. Merrimack County Ins. Co. 7 Foster, 149, it would have avoided a policy similar in terms to this, need not he decided.
2. The certificates of the value of the property, as made by the directors of the Whately Insurance Company when the assured applied to become a member of that company, were the opinions of others as to its value, and were not admissible against the plaintiff in this action. His acceptance of policies based upon such appraisals would bind him as a matter of contract in the transactions with the Whately Insurance Company, but would-not be evidence of an admission by him that such appraisals were correct in a transaction with another party.
3. The plaintiff had at the trial a right to inquire as to the nature and quality of the different parts of the building, the cellar inclusive, of any person acquainted with building, and
4. The defendant sought to show what the land sold for after the buildings were destroyed, as affording evidence of the value of the buildings when connected, with proof of what both together had before been offered for at sale. We cannot say that this was improperly excluded. The relation which the buildings occupy to the land is not necessarily such that their value can approximately be ascertained by such a comparison as was proposed. In some instances they add to the value of the estate more than their own independent value, while, in others, buildings, which it would cost much money to renew, do not add sensibly to the amount for which the estate, on which they are situated, could be sold.
5. The defendant contends that the policy held by the assured, at the time of the loss, in the Whately Insurance Company, having been issued to him prior to that of the defendant, and being without clause of contribution, and covering the entire insurable interest in the property, the policy of the defendant was invalid. The facts as proved do not afford ground for this contention of the defendant. A different estimate was placed by the jury upon the value of the property from that which appeared when the case was formerly before this court. Bardwell v. Conway Ins. Co. 118 Mass. 465. The verdict, as it appears by these exceptions, and as rendered at the last trial under the instruction of the court, shows that the insurance of the Whately Insurance Company did not cover the plaintiff’s insurable interest. The loss was total, and the instruction was that the proportion that the defendant should contribute towards it should be ten thirty-second parts of three fourths of the actual loss of the house and shed. The insurance of the defendant was $1000 thereon, that of the Whately Insurance Company being $2200, and under this instruction a verdict was rendered for the plaintiff, which included the whole amount insured on the house and shed. By this verdict, therefore, it appears, according to the estimate placed by the jury on the loss, that three fourths oí
No policy is to be issued on the mutual plan for more than three fourths of the value of the property insured. Gen. Sts. c. 58, § 52. If the insured, after obtaining insurance by a valued policy, and one in which the insurers are entitled to no contribution from others in case of loss, finds his property still uninsured to three fourths its actual value, he may certainly insure in any mutual company until this amount is reached. If, after the prior policy is paid in full, the amount which such latter company is to pay does not exceed the proportion which its insurance bears to the whole, and if the assured is not to receive in all more than three fourths of the value of his property, it can have no ground of complaint.
If the verdict had been for $500 only, — as, according to this estimate of ten thirty seconds of three fourths of the value, the whole would have been less than $2200, — the defendant might contend that, if the plaintiff could hold such a verdict, he would receive more in amount than the value of his property, by receiving this in addition to the amount to which he would be entitled under the prior policy. Whether in such case there could be a recovery is not a question here presented. No such result can follow from the present verdict. It is immaterial that the prior policy was not subject to contribution, when, if it were fully paid, and if the defendant paid in addition its proportionate share of the loss, the plaintiff would not receive thereby in all more than three fourths of the value of the property, as found by the jury.
6. The evidence that the Whately Insurance Company, upon an adjustment, had paid the plaintiff $1750, was not material. The view we have taken of the prior insurance, that it may have been paid in full, is the one most favorable to the defendant, and the adjustment was not evidence of the value of the property between any others than the parties to it.
