Mullin v. Vt. Mutual Fire Ins.

| Vt. | Jan 15, 1886

The opinion of the court was delivered by

Powers, J.

The first question presented by the exceptions is whether J. D. Butler in the matter of taking the application for the insurance in question, was so far .acting for the defendant company as to make his knowledge of errors in such application knowledge in the company, and thus estop the company from claiming a forfeiture therefor.

It appears that Manley was a duly authorized agent of the company at West Rutland; — that Butler was in his office, and engaged to some extent in drumming for insurance, and that he and Manley divided the fees payable upon accepted applications in a proportion agreed upon between them. Butler, however, was not himself appointed or recognized by Manley or the company, as an agent. When the application of the plaintiff was returned by the company for further information respecting the occupancy of the store and the ownership of the goods therein, Manley “handed it to Mr. Butler and requested him to go and get the reply, and that Mr. Butler took the same and shortly after brought it back with the additional answers in- Mr. Butler's handwriting.” This is the defendant’s evidence on this point, and upon it we are clear that the act of obtaining the reply to the company’s questions was in legal significance the act of Manley, rather than Butler. Butler was expressly directed by Manley to do this service, and in doingit he acted merely as the hand of Manley, andas the latter was confessedly the defendant’s agent, this act was one done by’its agent and in obedience to the company’s direction. It is thus wholly unnecessary to consider the able argument of the defendant’s counsel upon the question of Manley’s power to create a sub-agent, or whether Butler had any of the functions of agency in the transaction. The business was done by Manley and he ran the risk of any perils that might affect the company incident to it. It would be a dangerous doctrine to promulgate, if we held that the company could avoid its responsibilities by repudiating the acts of its own agents if they happened in large towns to be done in part by the assistance of persons employed by such agents. There was no error on this point of exceptions.

As to the tenancy of Carrigan: in strict legal parlance, Carrigan was the owner of the goods in the store and tenant of the same. Mullin Bros, were the actual, visible tenants of the store and in visible possession of the stock. They were to become the sole owners when they paid Carrigan’s debt. Butler knew all about the facts, and it is wholly unimportant when he acquired his knowledge, — if he knew, when under directions of the company through its agent, Manley, he undertook to reply to the company’s questions and made a wrong statement. It carries all the consequences that create an estoppel on the company.

The false representations as to the settlement by the Lycoming Company, if made, are wholly immaterial. The fraud, misrepresentation, and false swearing, referred to in the by-laws, relate to the proofs of loss therein required to be made by the insured. The context leaves this beyond doubt. The plaintiff said nothing in his proofs of loss about the Lycoming loss. It was outside chaffer between him and Fletcher, and has no legal relation to his own loss. It is argued that this representation was made to induce the defendant company to settle his loss; but the company did not settle liis loss; it did not rely on such representation nor apparently regard it in its own action. What has it suffered therefore from it, or how could it suffer by means of it?

The plaintiff’s wife made out the proofs of loss concerning the household goods, etc.

It is easy to see that respecting an inventory of household effects destroyed by fire the wife would, in most cases, be much better informed as to articles lost than her husband. What man of us, under such circumstances, could inventory the linen, bedding, crockery, and a thousand and one articles in his house, if they were burned, without the aid of his wife? But if the plaintiff was compelled to get the aid of his wife he assumes all responsibility for her errors as he would for his own.

The defendant’s evidence tended to show that the wife included many articles not lost; some greatly overvalued, which had been purchased by the plaintiff himself, and some that he never owned at all. The plaintiff took his wife’s inventory without scrutiny, swore to it, not knowing, whether it was correct or otherwise; and it turned out to be grossly incorrect and false. Upon this evidence the defendant requested the court to charge that if the plaintiff adopted any false statement of the wife respecting a loss, or the value of goods lost, without investigating the facts, he thereby became guilty of a fraud himself; and if he made representations assuming to know the facts, when he had no knowledge, and such statements turned out to be false, it was a fraud within the meaning of the policy. The court did not answer these requests, but put these matters to the jury upon the theory of honest intention. In this was error. The company was entitled to a truthful inventory of the property lost. The plaintiff’s duty under the policy was to supply it; his representations must be true in fact. He cannot even be honest by turning the matter over to his wife, and omit to inspect her inventory to see if it be correct. If he had looked it over, and wished to be honest, he would have discovered many false statements which were calculated, and probably were intended, to work a fraud upon the defendant. He could have arrested this intended fraud, if he had done his duty. On the contrary, he recklessly indorsed it without examination, and by so doing made it his own fraud within the meaning of the policy.

If this view of the evidence had been laid before the jury, as requested by the defendant, who had the right to a charge upon it, possibly the jury might have rendered a verdict less surprising than the one they did.

Judgment reversed, and new trial granted.