55 Vt. 142 | Vt. | 1882
The opinion of the court was delivered by
This was an action of assumpsit, declaring upon two policies of insurance issued by the defendant to the plaintiff. One of said policies is for $800, expressed to be “ on dry goods and groceries in building described in Bridport ” ; and the other, for $1,600, “on goods in building described in Bridport.” The policies have printed upon them, under the head of “ extracts from the by-laws,” certain conditions which are made a part of the contract of insurance, and among these “ extracts ” are the following :
“ The keeping of gunpowder for sale or on storage, upon or in the premises insured, without a réquest in the application and express permission in the policy, shall render it void ” ; and, “ No camphene, burning fluid, spirit, gas, or any other inflammable liquid [except kerosene] shall be kept for sale in any building hereafter insured in this company, without written permission ; and in no case shall it be drawn for use by artificial light, without rendering the policy void ” ; also, “ All persons insured by this company, and sustaining loss or damage by fire, are forthwith to give notice thereof to the company, and within thirty days after said loss to deliver in a particular account in detail of such loss or damage, signed with their own hands, and verified by their oath or affirmation, and also, if required, their books of account and other proper vouchers. They shall also declare on oath whether any and what other insurance has been made on the same property, and whether they were the owners of the property at the time of the loss. If there be any misrepresentation, fraud, or false swearing, the claimant shall forfeit all claim by virtuq of his policy.”
The main questions raised here are based upon the requests to charge. The first of these, founded on the last quoted condition in the policy, was as follows:
“I. The plaintiff cannot recover in this action; because he has not shown compliance with the conditions of policies, and the acts of incorporation, by-laws and application, which constitute the
Without going into the refinements ' of counsel upon this point, we deem it sufficient to say that this requirement, being for the benefit of the company, could be waived "or modified by the company ; and it is well settled, both upon principle and authority, that if a party insured calls upon- the insurer to pay his loss, and the latter makes no specific objection to the form or sufficiency of such proofs of that loss as are offered, or, to the entire neglect to furnish such proofs, in season for the claimant to repair his error, but declines to pay the claim upon other and different grounds, specifying them, he will be estopped from thereafter setting up defects in the proof of loss as a defense to the claim being presumed to have waived them. Certainly the most that can be claimed by an insurer in such a case, is that the question may go to the jury, under proper instructions, as to whether there was in fact such a waiver. Noyes v. Ins. Co., 30 Vt. 659; Farmers, &c., Ins. Co. v. Meckes, [Pa. 1881] 12 Rep. 314 ; Palmer v. St. Paul, &c., Ins. Co. [Wis. 1878,] 6 Ib. 413 ; Goodwin v. Mass, &c., Ins. Co., 73 N. Y. 480; Prentice v. Knickerbocker Life Ins. Co., 77 N. Y. 483 ; Brink v. Hanover Fire Ins. Co., 80 N. Y. 108 ; Ætna Ins. Co. v. Tyler, 16 Wend. 385 ; McMaster v. Westchester Ins. Co., 25 Ib. 379 ; 6 Cush. 440 ; Kernochan v. Bowery Ins. Co., 17 N. Y. 428; Child v. The Sun Mut. Ins. Co., 3 Sand. 42 ; Graham v. Firemen's Ins. Co., 21 Alb. L. J. 98; Ins. Co, v. Stauffer, 9 Casey, 397; Ins. Co. v. Sennett, 41 Pa. St. 161; Coursin v. Ins. Co., 46 Ib. 323; Buckley v. Garrett, 47 Ib. 204; Ins. Co. v. Taylor, 23 P. F. S. 343; Ins. Co. v. Todd, 2 Norris, 272; Crawford, &c., Ins. Co. v. Cochran, [Pa. 1879,] 7 Rep. 758 ; Harriman v.Queen Ins. Co., 49 Wis. 71 ; Enterprise Ins. Co. v. Parisot, 35 Ohio St. 35 ; Home Ins. Co. v. Baltimore Warehouse Co., [U. S. Sup. Ct. 1877,] 16 Am. L. Reg. N. S. 162; Norwich, &c., Trans. Co. v. Western Mass. Ins. Co., 6 Blatchf. 241; Bennett v. Maryland Fire Ins. Co., [U. S. Dist.
In the case at bar there was evidence tending to show a more or less faulty compliance with the condition- relating to proofs of loss, and evidence tending to show that no objection was made by the company, at least within the thirty days after the loss, to the form or sufficiency of these proofs ; but, that the refusal of the company to pay, when brought to the knowledge of the plaintiff, was expressed to be upon other grounds. All this evidence was submitted to the jury lay the’learned Chief Justice with instructions in which we find no error.; and the findings which the jury must háve made, having legitimate evidence upon which to rest, and being vitiated by no error in the instructions of the court, cannot be disturbed.
The defendant’s second request was that the court should charge the jury that “ the plaintiff cannot recover because it appears from the evidence he furnished the defendant of his loss, and of his bills and books, that he kept on sale in said store, intoxicating liquor, turpentine, and gun-powder, which by the express terms of .the contract rendered the policy void.” The conditions in the policy upon which this request is founded have been quoted above. They are conditions of forfeiture, inserted for the benefit and protection of the insurer. Says Colt, J., in the recent case of Turner v. Meriden Fire Ins. Co., U. S. C. Ct. Dist. of R. I. 22 Am. Law Reg. N. S. 275: “ We believe the general rule, that conditions in insurance policies inserted for the benefit- of the company should be strictly construed against it, to be a sound one ” ; and Hughes, J., in American Basket Co. v. Farmville Ins. Co., U. S. C. Ct. Dist. of Va. 8 Rep. 744, says, policies of insurance differ somewhat from other contracts in respect to the rules of construction to be applied to them. “ They are unipartite. They are in the form of receipts from the insurers to the insured, embodying covenants to compensate for losses described. They are signed by the insurer only. In general the insured never sees the policy until after he contracts and pays his premium, and he then most frequently receives it from a distance, when it is too late for him to obtain explanations or modifications of the policy sent him. The
The language of the first forfeiture clause in the policy in this case is, that the keeping of gunpowder for sale or on.storage “ upon or in the premises insured ” shall render it void. The subject of the insurance is “ goods ” in the one policy ; “ dry goods and groceries,” in the other. We are not referred to, nor have we been able to find, any adjudged case, or other recognized legal authority, which gives to the word “ premises,” [except as used in conveyancing and the drafting of pleadings, &c.] any other legal definition than the one, time honored and generally understood, of “ lands and tenenemts.” Nothing is insured by the policies in this case that comes within that definition. In order to give the clause the construction contended for by the defendant
The other subdivisions of this request are founded upon the clause against “ inflammable liquids ” above quoted. It is claimed by the defendant that the case shows a keeping for sale by the plaintiff of certain small quantities of “ turpentine ” and “ gin,” while the plaintiff denies that this is established by the evidence. Without attempting to settle this controversy, it is sufficient to say that neither “ turpentine ” nor “ gin ” are referred to in the prohibition, unless they come within the general term, “ other inflammable liquid.” The burden is upon the insurer to show that they did come within this description if he would avoid liability by reason of their having been kept. We find nothing in the case to indicate that any evidence was adduced tending to show that
The defendant’s third and fourth requests were as follows:
“ When the plaintiff applied to Grovenor, defendant’s agent, for additional insurance, he was bound to state fairly and honestly in the application, the value of the goods he wanted insured, and to answer correctly and without misrepresentation, any inquiry of said agent, in respect to matters material to the risk ; and if the plaintiff purposely or through negligence misrepresented his stock
The non-compliance with this request by the learned Chief Justice which is complained of as error, was, in substance, that he instructed the jury that if, when the plaintiff made application for the second policy and represented to the defendant’s agent the amount and kind of goods he had on hand, upon which the additional insurance was desired, he misstated the quantity or value of any of the hinds of these goods — as the number of overcoats or other articles — either through mistake or otherwise, it would not vitiate the policy provided he stated correctly the value of the whole, and all were insurable in the same class and at the same rates. The charge was, in substance and effect, that the misrepresentation must be of something material to the risk in order to avoid the policy. It is undoubtedly competent for an insurance contract to be so drawn as that it shall become void if the applicant makes any misrepresentation of fact, no matter how immaterial, and if such is the plain language it will be enforced. Boutelle v. Ins. Co., 51 Vt. 4. The policies in question contain no such stipulation with regard to the application itself, and certainly none with regard to oral representations which may be made to the agent at the time of making the application. In the absence of such stipulation in the policy, in plain and unambiguous terms, the rule-is well settled as laid down in the charge, that such misrepresentations will not avoid the policy unless material to the risk. Barteau v. Phœnix Ins. Co., [N. Y. 1876,] 3 L. & E. Rep. 303 ; Lycoming Ins. Co. v. Ruhen, [Ill.] 1 Ib. 112; Ryan v. Ins. Co., [Wis. 1879,] 20 Alb. L. J. 236.
With regard to the proofs of loss, the defendant requested the
The requests to charge were numerous and minute; and with regard to those not covered by what has been said we deem it sufficient to say that from a careful examination of the charge we are satisfied they were complied with as far as the defendant was entitled to have them.
The defendant excepted to the admission of testimony offered by the plaintiff in support of his character for honesty, integrity and truthfulness. To determine the question of the admissibility of that evidence it is necessary to see how far the evidence which had been putin by the defendant had tended to impeach the char
The objection that was made to the testimony was “ that defendant had introduced no impeaching testimony of plaintiff’s character.” No objection appears to have been made to the form of the questions or answers, and the court was required to rule upon the question of the admissibility of the evidence under the specific objection made. If the testimony put in by the defendant tended to impeach the character of the plaintiff for truthfulness, the evidence offered to sustain his character in that respect was admissible; that testimony, tending to show that he had sworn falsely upon a material matter then in issue and on trial, would have that tendency cannot be doubted. It was. decided in State v. Roe, 12 Vt. 93, in Paine v. Tilden, 20 Vt. 554, and in Sweet v. Sherman, 21 Vt. 23, that where evidence had been introduced tending to impeach the character of a witness for truth, testimony might be introduced to sustain his general good character for truth. There was no error in admitting the evidence.
By the provisions of section seven of the act incorporating the defendant, the plaintiff would be entitled to interest on the amount of loss or damage found to have been sustained by him from the time of its happening. The defendant has no ground o.f complaint, therefore, of a verdict and judgment charging it with interest only from a date nearly two months subsequent to the date of the loss.
The judgment is affirmed.