| Mass. | Mar 15, 1873
1. The receivers contend that the policy was avoided by .the use of the dummy engine under the circumstances stated in the report. The policy provides that “ if the situation or circumstances affecting the risk thereupon shall be so altered or changed by or with their advice, agency or consent, as to increase the risk thereupon,” the policy shall be void. The answer to this position of the receivers is that the situation or circumstances affecting the risk were not altered or changed after the making of the policy. The report finds that for more than ten years the dummy engine had been in use on the wharf of the petitioners, near the station, in the ordinary course of their business. One of the circumstances affecting the risk, existing when the policy was issued, was the occasional use of this engine. It was issued to protect the company against existing risks of which such use was one.
The ground taken by the receivers that the policy is void because the petitioners did not disclose this risk to the company, we think cannot be sustained. The policy contains the provision that “ the assured hereby covenants and engages that the representation given in the application for this insurance contains a just, full and true exposition of all the facts and circumstances m regard to the condition, situation, value and risk of the property insured, so far as the same are known to them and material to the risk, and that if any material fact or circumstance shall rot have been fairly represented,” the policy shall be void. This is a provision for the benefit of the insurers, which they might waive. They issued this policy without requiring any application or representation in regard to the situation, value and risk of the property insured. The printed slip furnished by the petitioners, and made part of the policy, contains a description, in the most general terms, of the property insured. So far as it contains any representation it may import a warranty on the part of the assured; but it does not purport to give the situation, value or risk of the property. As the insurers chose to issue this policy upon their own examination, without the application contemplated in this provision, they must be deemed to have waived it, and cannot now claim that the policy is void be
We think, therefore, that, there being no change of risk, and no warranty, misrepresentation or concealment as to the matter, the policy was not avoided by the use of the dummy engine.
2. The policy insures the petitioners $6000 “ on property belonging to the company, or on any property for which they may be liable, in freight buildings, or yards in Charlestown.” The assured claim to recover, under this clause, $4487, for property belonging to them, according to the schedule annexed to their petition. The last clause in the policy provides that accounts, books, furniture and some other articles enumerated, “ are not to be insured, unless by special agreement.”
The effect of this clause is, that the books and furniture of the petitioners, not being insured by special agreement, are not covered by the policy. Their claim includes a number of items of books and furniture for which they are not entitled to recover, and the case will stand for a hearing as to these items unless the parties agree upon their amount.
Another claim under this clause of the policy is for merchandise belonging to other parties, for which the petitioners were liable as common carriers, and for which they have paid.
The defendants admit their liability for a large proportion of this merchandise, but they contend that they are not liable for that part of it received for transportation over the Vermont & Massachusetts Railroad, or over the Cheshire & Sullivan Railroad and not beyond the termination thereof.
The ground upon which they claim to be exempted from liability is, that in regard to that point, the petitioners and the two railroads named had entered into a contract by which they agreed to indemnify the petitioners from all claims for “ any loss of or damage to any and all goods and freight of every description, while in transit over the Fitchburg Railroad, or in its depots, or upon its premises.” The argument is, that as by these contracts the Vermont & Massachusetts and the Cheshire
The Fitchburg Railroad were undoubtedly liable as common carriers for these goods to the owners or forwarders, and it was no defence that the connecting roads had agreed to indemnify them. They had thus a special property and an insurable interest in them. Their policy covered not only property in their freight buildings or yards belonging to them, but “ any property for which they may be liable.” Whatever may be their rights under their arrangements with the connecting roads, it is clear that they have a right to recover against the insurers under their policy.
3. The petitioners claim to recover for two freight cars belonging to the Rensselaer & Saratoga Railroad Company. The policy covers “ freight cars owned or used by the company.” Both the cars in question were in their possession and use as common carriers. They had an insurable interest in them, and are entitled to recover for their loss. Vermont & Mass. Railroad Co. v. Fitchburg Railroad Co. 14 Allen, 462. Eastern Railroad Co. v. Relief Fire Ins. Co. 98 Mass. 420" court="Mass." date_filed="1868-01-15" href="https://app.midpage.ai/document/eastern-railroad-v-relief-firf-insurance-6415226?utm_source=webapp" opinion_id="6415226">98 Mass. 420, 423.
4. The assured owned at Charlestown several freight buildings, one of which was burned and was of the value of over $50,000. The policy insures $8350 “ on all or either of the freight buildings at Charlestown.” This language admits of but one construction. If either of the buildings is damaged, the insurers are hable for the full amount of the loss, not exceeding the amount insured. As the value of the building burned exceeded the amount of the insurance in the three offices in which it was insured, the petitioners are entitled to recover the full amount of this claim.
Case to stand for hearing.