Joyce v. Maine Insurance

45 Me. 168 | Me. | 1858

The opinion of the Court was drawn up by

Tenney, C. J.

In the defence of this action, which is on a policy of insurance against a loss by fire, the opinions of certain persons, who were shown to have had experience in the business of insurance, as to the comparative risk of a dwellinghouse, which had been vacated after the occupation thereof, and when the occupation had continued; — and, whether the premiums of insurance would or would not be increased in consequence of the owner vacating the house, were offered, and, on the plaintiff’s objection, excluded.

None of the inquiries related to matters of science and skill. 1 Greenl. Ev. § 440. A witness cannot give his views on the manner in which others would probably be influenced, if the parties acted one way or the other. Therefore, the opinion of a person conversant with the business of insurance, upon a question whether a premium would have been increased by the communication of certain specified facts, has been held inadmissible. 1 Greenl. Ev. § 441 and note (1) and (2).

The defendants offered to prove that a small stable, standing on a lot adjoining the one upon which the dwellinghouse insured was situated, owned by a third person, was removed to a spot nearer to the • house insured, than that on which it stood at the date of the policy, and had been raised in height, and increased in other respects; this evidence was excluded 'on the plaintiff’s objection.

It is stated in the policy, that “ this policy is made and accepted in reference to the application for it, and to the conditions hereto annexed, which are hereby made a part of this contract, and are to be resorted to, in order to ascertain and determine the rights and obligations of the parties hereto, in all cases, not herein otherwise specially provided for.” In the conditions referred to, as stated in the body of the policy, is the following, in number 4. — “ If, after insurance is affected on any building or goods in this office, &c. the risk shall be increased, by any means whatsoever within the control of the assured, or if such building or premises shall, with the assent of the assured, be occupied in any way so as to render the risk more hazardous than at the time of insuring, such insurance shall be void and of no effect. If, during the insurance, the risk be increased, by the erection of buildings, or by the use or occupation of neighboring premises or otherwise, of which prompt written notice shall be given to the company by the assured, or if for any other cause the company shall so elect, it shall be optional with the company to terminate the insurance, after notice given to the assured or his representative, of their intention to do so, in which case the company will refund a ratable portion of the premium.”

By the former of the two periods, quoted from the conditions, the acts of the assured, therein specified, are to be followed by a forfeiture of all benefit from the policy. In the latter, it is otherwise. If the evidence offered would embrace such a case as last described, which may well bo doubted, but upon which no opinion is given, such use of the neighboring premises does not avoid the policy; but prompt notice to the company is alone required by the terms of the condition. The company cannot assume that they would have terminated the insurance, if the notice had been given of the removal of the stable from one part of the lot to another, of which the plaintiffs had no control, and, as the fire which destroyed the building was not due to the removal of the stable, no injury would be proved to have been done to the company, if- this evidence had been admitted.

The house insured is represented in the policy as occupied in part by William H. D. Joyce. This cannot be an agreement that he should continue in the occupation, but it is merely descriptive of the house, such as is common in a deed of conveyance.

We are satisfied that the rulings were free from legal error. — According to the agreement of the parties, judgment is to be entered for the plaintiff.

Hathaway, Cutting, May, Goodenow, and Davis, J. J., concurred.