Dennison v. Thomaston Mutual Insurance

20 Me. 125 | Me. | 1841

The opinion of the Court was by

Whitman C. J.

A verdict was taken for the plaintiff subject to the opinion of the Court, upon a report of the Judge, before whom the trial was had, of the evidence, and rulings by him made in the progress of the trial. And it is agreed, that such judgment shall be entered, either upon the verdict or upon nonsuit, as the Court may deem reasonable.

The action is upon a policy of insurance against fire, underwritten by the defendants, on the dwellinghouse of the plaintiff, situated in Bangor, which was consumed by fire. The defendants, for their defence, rely upon what they consider to have been a misrepresentation made at the time the policy was effected. The misrepresentation alleged is contained in the answer to a written interrogatory, propounded to the plaintiff, as to the distance of other buildings from the premises insured. The answer was in these words; “ East side of the block are small one story woodsheds, and would not endanger the buildings if they should burn.”

In evidence it appeared, that small sheds projected out from near the back part of the brick block of buildings, (one of which was the house in question,) twenty-four feet, being twelve feet in width, and eight feet stud ; and leaving a passageway, in the rear of them, of fourteen feet wide, adjoining some two story wooden buildings, standing on another street, forty-nine.feet from the plaintiff’s house, and in which the fire which consumed the plaintiff’s house originated.

The first question, which arises, is, was this a misrepresentation, or was there a suppression of the truth tantamount thereto, and material to the risk. It does not seem to be necessary, in order to avail the defendants in their defence, that the misrepresentation or suppression of the truth should have been wilful. If it were but an inadvertent omission, yet if it were material to the risk, and such as the plaintiff should have known to be so, it would render the policy void.

In the case at bar, it has now been rendered undeniable, that the burning of the two story buildings, on another street, endangered the plaintiff’s house ; and to the interrogatory propounded it now would seem, that the existence of those buildings might with propriety, have been stated. But this does not prove, that, before the occurrence of the fire, it would have been deemed material to name them, as being near enough to put the plaintiff1’s house in jeopardy. It is not an unfrequent occurrence, after a disaster has happened, that we can clearly discern, that the cause, which may have produced it, would be likely to have such an effect, whthe, if no such disaster had occurred, we might have been very far from expecting it. In this case it is essential to determine whether the plaintiff was bound to have known that a fire originating in the two story wooden buildings, would have endangered the burning of his house. If as a man of ordinary capacity, he ought to have had such an apprehension, then he ought to have named those buildings in reply to the interrogatory propounded ; for, what a man ought to have known, he must be presumed to have known. This knowledge, in a case like the present, must have been something more than, that by possibility a fire so originating might have endangered his house. This kind of knowledge might exist in regard to a fire originating in almost any part of a city like Bangor; for a fire originating-in an extreme part of it, if the wind were high and favorable for the purpose, might endanger all the buildings, however remote, standing nearly contiguous one to another, to the leeward of it. Any danger like tins could not have been in contemplation, when the interrogatory was propounded. Such buildings only as were so nearly contiguous as to have been, in case a fire should originate therein, productive of imminent hazard to the safety of tiro plaintiff’s dwelling, could have been in view by the defendants. And the question is, were the two story wooden buildings of that, description ?

In reference to this question, it may not be unimportant to consider, that the defendants, at the time when this policy was effected, had an agent residing in Bangor, whose business it was to attend, in their behalf, to the applications for insurance from that quarter. It may be believed, that the selection of this individual was the result of knowledge, with regard to his intelligence and capacity for such purpose. It. was not, however, his business, perhaps, to prepare representations to be made by applicants for insurance. But it did so happen, that he assisted the plaintiff in preparing the answers to the standing interrogatories, one of which is the interrogatory before named, intended to produce a representation upon which to found the estimates of the propriety of assuming the risks proposed. He, it seems, examined the premises, looked at the wood sheds, and the two story wooden buildings beyond them. To him it did not seem to have occurred, that the vicinity of those buildings was such as to render it necessary that the two story wooden buildings should be named in answer to the interrogatory ; for he, at the request of the plaintiff, penned the reply thereto as he thought proper.

It does not appear that any witness has testified, that, anterior to the disaster, he should have anticipated such an event as within the range of probability. What other individuals of intelligence did not foresee to be likely to occur, could not reasonably be expected of the plaintiff. And what he could not be expected to know, he cannot be considered as culpable for not knowing. And what he could not be expected to apprehend, he could not be bound to communicate; and, in not communicating any such fact, he could not be considered as guilty of concealing it, even inadvertently, and much less wilfully.

As to the wooden sheds, they were named; and the description given of them is precisely in conformity to the truth. They were named, however, in connexion with an opinion, that if they took fire, they would not endanger the house. There is, then, no misrepresentation with regard to their existence. The misrepresentation complained of, in reference to them, is merely in matter of opinion. But opinions, if honestly entertained, and honestly communicated, are not misrepresentations, however erroneous they may prove to be. That this opinion was uttered bona fide, and in perfect singleness of heart and purpose, may well be believed, and may fairly be deducible from the fact, that it was expressed in concurrence with the unquestionable belief, at the time, of its correctness, by the confidential friend of the defendants. An opinion so uttered, if not in good faith, might well be complained of, as it might tend to throw the defendants off their guard. In such case, it might tend to show a fraudulent design; and in connexion with evidence of misrepresentation of facts, even short of what otherwise might be necessary to vacate a contract, would be likely to have that effect.

But it is by no means clear, if the fire had not originated elsewhere than in the sheds, that it would have been attended with essential danger .to the main building. The neighbors and firemen of the city, might be expected to be able to extinguish a fire so originating. Such buildings are easily pulled to pieces; and an engine brought to bear upon them would do great execution. It may therefore, even now, be very questionable, whether the opinion complained of may not be adopted as well founded to a very considerable extent at least.

As to the testimony of the witnesses, touching the condition of the fire department and its exertions, and whatever relates thereto, we see no ground, from thence arising, to question the correctness of the finding of the jury. The most that can be said of that part of the evidence is, that it is irrelevant, and not of a tendency to influence a jury one way or the other.

We are of opinion, therefore, that judgment must be entered upon the verdict, with interest as agreed.