184 N.Y. 107 | NY | 1906
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Whatever our views might be if the question were new, we regard it as settled that where, by the same policy, different classes of property, each separately valued, are insured for distinct amounts, even if the premium for the aggregate amount is paid in gross, the contract is severable and a breach of warranty as to one subject of insurance only does not affect the policy as to the others, unless it clearly appears that such was the intention. (Knowles v. American Ins. Co., 66 Hun, 220;
The claim of the defendant that the warranties in the application have a different effect from those in the body of the policy is not sustained by the authorities, for in the PrattCase (supra), as the appeal book shows, the application containing the warranty broken was referred to in the policy and made a part thereof, yet a recovery, although denied as to the building, was allowed as to the personal property. Moreover, the application now before us provides that the warranties *112 therein shall be "the same as if written on the face of the policy," which indicates an intention that they should have the same effect only.
Upon the trial evidence was given by the defendant tending to show that for more than twenty years the plaintiff had resided on a farm belonging to his wife, situated about one mile from the farm in question. He worked it for his wife while they lived thereon and after moving to a neighboring village he managed it for her, making the contracts with tenants who worked it on shares and settling with them. The defendant called several witnesses to show that, in 1892, two stacks of clover on the farm of the plaintiff's wife while so worked, managed or controlled by him, were destroyed by fire; that in 1896 a barn and its contents on the same farm were burned; that in January, 1899, the house upon that farm and, in November of the same year, the barns thereon with the contents were destroyed in the same way. All this property was insured when it was thus burned.
The defendant sought to show by these witnesses that before the policy in question was issued the plaintiff had stated to them that these fires were of incendiary origin, and that some of them were set by enemies of his because of a grudge they had against him on account of certain transactions. The evidence was excluded on the objection of the plaintiff that it was immaterial and incompetent.
The exception to these rulings raised reversible error. As the plaintiff had stated in his application that he had no reason to fear incendiary fires, the defendant had the right to show his declarations that these numerous fires had been caused by his enemies on account of their feeling toward him. While the fires occurred on his wife's premises and destroyed her property only, still if he thought when he made the application that they were kindled by his enemies because they had a grudge against him, it bore on the truth of his statement that he had no reason to "fear incendiarism." Although two of the fires were somewhat remote in time, two of them were comparatively recent and they all occurred on his wife's farm which *113 he controlled and which was near his own. His admission that they were owing to the crimes of incendiaries, committed out of malice toward him, would have authorized the jury to find a breach of the warranty to the effect that he had no reason to fear a repetition of those crimes with reference to the property upon which he sought insurance. The moral hazard, to which insurers properly give much heed, was materially increased by the danger that his enemies would destroy his property as they had previously destroyed that of his wife and for the same reason. Even if the fact covered by the warranty had not been material to the risk, as he warranted it to be true, the policy was void unless it was true. This warranty applied with equal force to every part of the contract, regardless of the separate valuations, for it necessarily affected real and personal property in the same way. He agreed that his answer to a certain question should be a warranty and he was bound by his agreement, even if the fact called for did not increase the hazard. A representation is collateral to the contract and to be effective must be material to the risk, but a warranty, whether material or not, being part of the contract, has the force of a condition precedent and, unless it is true, the insurer is not bound by his promise. As the plaintiff expressly warranted that his answer as to fear of incendiarism was true, while the evidence excluded would have tended to show that it was not true, the defendant was prevented from establishing a defense duly set forth in the answer. This error requires a reversal and a new trial.
The judgment should be reversed and a new trial granted, costs to abide the event.
CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, HAIGHT, WILLARD BARTLETT and CHASE, JJ., concur.
Judgment reversed, etc. *114