Nicoll v. American Ins.
18 F. Cas. 231
U.S. Circuit Court for the Dis...
1847
Check Treatment

In the course of the trial the following rulings and instructions were given on points of law deemed material:

WOODBURY, Circuit Justice.

As there is no evidence of the written appointment of Mr. Bigelow as agent of the defendants, the jury must decide on the fact and the extent of his agency by what he testifies and did, coupled with the acts of the defendants recognizing him. If the jury believe he was an agent to receive the representations to obtain insurances, and a policy , is returned and •delivered after two sets of representations have been delivered to him, but the last set for the present policy, the plaintiffs are not here bound except by the last set. If either party must suffer by his mistake, it must be the defendants, whose agent he is, and the plaintiffs are not to be bound in this case by representations never made for this case, and never presented to the defendants, or their agent, as the ground for the present insurance. Again, if the representations produced by the defendants do not contain «.11 which those to the combination office did, by the mistake of the agent of the defendants in copying, and the plaintiffs meant to sign through Nicoll only a true copy, and Bigelow knew this, it is very questionable whether the plaintiffs are liable for the error or difference. But however that may be, the letter written by Nicoll in May, 1846, correcting any difference, if one existed, as to the stove and sizing being before this loss, and being actually delivered to Bigelow was a sufficient correction, if the jury believed it to have been done at the time, and that Bigelow was agent of the defendants to the extent of receiving such information.

In respect to the representations which the juiy may find ought to govern, they are in this case to be treated as representations only, and not as warranties. They are dehors the policy, and not referred to in it as warranties. 1 Phil. Ins. 27; 5 Hill, 101, 188; 1 Durn. & E. [1 Term R.] 343. The condition annexed making a “survey and description” a warranty, relates to a survey made by some third person employed for that purpose and the description attached to the plan or map. To the truth of these a warranty or guaranty is required, because they are not representations made by the insured, but third persons. Representations made by the insured were not needed to be guarantied, and extend to so many matters as to be improper for warranties about all of them, and if regarded otherwise, would tend to ensnare and mislead the insured. 2 Hall, 589; Cowp. 785; Doug. 11, note. If considered warranties, they cannot be deviated from in the smallest particular, and must with exactness correspond to all details when made, whether material or immaterial. Whereas if regarded as representations, which is the character attached to these by the insured, and which is the just view looking to all interests, the insured is not answerable on account of them, unless they differ in material respects from the truth or are departed from in a material manner. Clark v. Manufacturers’ Ins. Co. [Case No. 2,829], and cases there cited; 3 Kent. Comm. 282; 1 Phil. Ins. 27. If these last circumstances of misrepresentations occur, then the policy cannot be enforced, and in the former case of a warranty failing it never attaches. Clark v. Manufacturers’ Ins. Co. [supra]; [Columbian Ins. Co. of Alexandria v. Lawrence] 2 Pet. [27 U. S.] 26; [Hazard v. New England Marine Ins. Co.] 8 Pet. [33 U. S.] 557; 3 Hill, 501; 8 Metc. [Mass.] 114; Dennison v. Thomaston Mut. Ins. Co., 20 Me. 125. Perhaps the best test as to the materiality of the variance is, that it increases the risk so as to require a larger premium. The rule that it must be material, and the test of its being material, that it increases the risk, is such that where the shade of difference in the risk is so slight as not to require an increased premium, perhaps it will be safe to say this is proof that the difference is not material.

One of the first great opinions of Lord *234Mansfield in insurance cases 'was connected with the subject of representations and concealment, and the former1 were held by him to be sufficient, if disclosing all not generally known, not speculative, and not as a public officer required to be silent about. Carter v. Boehm, 3 Burrows, 1905. Another instruction I feel bound to give, is that if the answers of the plaintiffs as to a watch in the representations produced by the respondents, are so doubtful or ambiguous as to lead to different conclusions, the defendants should have asked for explanations before taking the insurance. Phil. Ins. 224, 232; [Livingston v. Maryland Ins. Co.] 7 Cranch [11 U. S.] 535. Or the construction most favorable to the plaintiffs is to be followed. Lord Mansfield in 3 Burrows, 1918. This construction would exonerate the plaintiffs as to a watch on the representations now offered, as they refer to keeping a watch of fires and lights, and these were not used when this loss occurred, and when they were used a watch was kept. So they would be exonerated, if the other representations were the true ones made for this policy and specified that the watch was to be kept only from the middle of September to the middle of March. In this last event, also, there was no violation of the representations as to heating the building, keeping a stove or making sizing within, and none in the event that the first representations are to govern, provided the notice was given duly in May, 1846, that a stove was íd use in the dressing room to make sizing, &c.

In respect to the tanks of water and the pipes instead of the hogsheads, it is for the jury to say whether there was any substantial variance from the representations. No fraud is here set up, and consequently the law on that need not be gone into. But it must be remembered that if the real representations made for this policy have in any material point been departed from by the plaintiffs, they cannot recover, whether that departure caused the fire and loss or not. 3 Kent, Comm. 282. It would, then, be sufficient for the defendants to say that the implied if not express condition on which they engaged to be bound has not been complied with by the plaintiffs. And as insurances are matters of strict contract and good faith or fidelity to its provisions, parties cannot recover on them, however unfortunate, unless they comply with such provisions and their own representations. Certainly not unless they comply with the latter, at least in substance, or in all material respects.

• The jury returned a verdict for the plaintiffs for the amount insured.

After several days had elapsed, and the court was on the eve of an adjournment, the defendants asked leave to file a bill of exceptions to some of the rulings of the court at the trial.

THE COURT stated that the exceptions, If to be relied on by a bill, should be so taken and notified at the trial. Walton v. U. S., 9 Wheat. [22 U. S.] 651; Patterson v. Philips, 1 How. (Miss.) 572; [Bradstreet v. Thomas] 4 Pet. [29 U. S.] 102. If not then taken, they cannot be settled correctly by fresh recollection, or by the observations and oaths of the by-standers, which are in some states by statute resorted to under contradictions. So the form of the bill itself is, that the exceptions were taken at the trial. Stimpson v. West Chester R. Co., 3 How. [44 U. S.] 553. When taken at the trial, the court may allow them to be reduced to form afterwards and filed at a subsequent day within a reasonable time nunc pro tune. [Bradstreet v. Thomas] 4 Pet. [29 U. S.] 102; 3 Cow. 32; 9 Johns. 345; 2 Scam. 490; 3 Scam. 17, 24; 1 Gill, 66; 2 Tidd, Prac. 913. In this instance, as the plaintiffs may possibly have supposed, that raising questions of law at the trial was enough, without stating any exceptions in form to the ruling on them, I should be inclined to waive the latter, if the exceptions had been relied on immediately after the rulings were made, and a bill had been presented then, or time asked then to prepare-one. But this not being done till several days had expired, I think it too late now. The counsel for the defendants, however, feeling anxious to obtain time now to prepare the bill and have it signed and allowed, he is at liberty to do it, stating in the bill itself the days the rulings were made, the-verdict found, and this application made, so that the court above may judge whether the exception was duly taken. Both parties: have rights here, and however immaterial it may be to the court when the exception is-made, the plaintiffs cannot be subjected to-it, except on legal principles.

The bill was accordingly prepared in that way and signed, but no writ of error brought.