Goddard v. Monitor Mutual Fire Insurance

108 Mass. 56 | Mass. | 1871

Ames, J.

It is a fatal defect in the plaintiff’s case that the policy professes to insure a machine shop, and that the building destroyed by fire was not a machine shop. It would be doing great violence to language to contend that a building in which organs and melodeons are manufactured can be correctly described as a machine shop. It appears by the report of the case, that the risk of destruction by fire is greater in the case of a building in which organs and melodeons are manufactured, than in that of one in which machinery is manufactured. The representation therefore was material, and it was untrue. It makes no difference that the misrepresentation was accidental, unintentional, and without any fraudulent intent, or even that the party insured was ignorant that such a representation had been made. In either case, the ground of objection is the same; the insurers were misled. They were willing to insure a machine shop, and supposed they were so doing; but they have never insured the plaintiff’s organ factory, which was a different and more hazardous risk. The misrepresentation takes away the foundation of the policy; and as it was an affirmation of a fact as then existing, it is enough to prevent the policy from taking effect as a contract. The minds of the parties have not met upon the organ factory as the subject matter of insurance. Kimball v. Ætna Insurance Co. 9 Allen, 540. Carpenter v. American Insurance Co. 1 Story, 57. Campbell v. New England Insurance Co. 98 Mass. 381. Wilbur v. Bowditch Insurance Co. 10 Cush. 446. The plaintiff sues upon the policy, and the court cannot alter the contract as therein expressed. Tebbetts v. Hamilton Insurance Co. 3 Allen, 569. However unfortunate this may be for the plaintiff, he accepted the policy in its present shape, and cannot complain that he has been misled by it. Barrett v. Union Insurance Co. 7 Cush. 175.

In this view of the case, the application becomes unimportant, as does also the question whether Gleason was the plaintiff’s or the defendants’ agent. It is decisive of the case, that the policy, which the plaintiff accepted without objection, or attempt to have >ny mistake corrected, cannot be applied to the building which was destroyed by the fire.

Judgment for the defendant*.