Gates v. Madison County Mutual Insurance

3 Barb. 73 | N.Y. Sup. Ct. | 1848

By the Court,

Gridley, J.

Although the application in this case is made a part of the contract, we do not place our decision upon the ground of a breach of warranty. It is true we regard the interrogatory which inquired the distance of the insured premises from other buildings, if less than ten rods, as calling for all the buildings within ten rods, although the language of the interrogatory is somewhat different from that employed in the forms in use by several other companies, and upon which the court has passed in several reported cases. It was manifestly the object of the company to ascertain the number of buildings within ten rods, and their distance from the buildings insured. The applicant, who should truly state the distance of the nearest building, but wholly omit to state that the latter was adjacent to another of a very hazardous character, as a powder mill, would clearly withhold valuable information, which, with a prudent officer, would doubtless be decisive against accepting the risk. It is difficult, however, to maintain, that an answer stating the nearest buildings, merely, without professing to do more, would amount to a warranty that there were no other buildings within the given distance. It would, however, amount to the withholding of information material to the risk, which was called for by the interrogatory. And that is declared by the court in the case of Burritt v. The Saratoga Mutual Insurance Co. (5 Hill, 191, 192,) to be a defence to an action on the policy.

After stating the rule which prevails in cases of marine insurance, and distinguishing it from that which is applicable to policies of insurance against fire, Judge Bronson says: “It is therefore the practice with companies that insure against fires, to make inquiries of the assured concerning all matters that are material to the risk,” and he then adds, “when called on to speak, he is bound to make a full and true representation concerning all matters brought to his notice, and any concealment will have the like effect as in case of a marine risk. It is not necessary for the purpose of avoiding the policy, to show that any fraud was intended; it is enough that information material to the risk was required and withheld.”

If this be law, then we think that the omission of the plaintiffs to inform the company of several buildings within the distance of ten rods from the premises insured, one or more of which was of the most hazardous description, furnishes a de-fence to this action.

It is argued that when the company perceived that the answer to the interrogatory was not a full one, its officers might have demanded a further answer, or declined to take the risk. We are unable to say whether the company regarded the answer as a full response to the question or not; at all events, upon the authority of the case above cited, the applicants having been inquired of, were bound to give a full answer, and to withhold no information fairly called for, at the peril of forfeiting all rights under the policy; and this, whether the withholding of such information was fraudulent or not. If this principle is to be overruled, it must be done by the court of appeals. This is the ground on which the motion for a nonsuit was granted at the circuit, and it is the principle on which we deny the application for a new trial.

New trial denied.