North Berwick Co. v. New England F. & M. Ins.

52 Me. 336 | Me. | 1864

The opinion of the Court was drawn by

Appleton, C. J.

This is an action upon two policies of insurance issued by the defendants.

The policy, No. 110, insures the plaintiffs’ factory and other buildings and machinery, for the term of one year from Jan. 1, 1861.

The seventeenth interrogatory in" the application and survey is, — " during what hours is the factory worked?” The answer is„ — "usually from 6-J- a. m. to 12£ p. m. and 1 to 7 p. m. in summer; from 6-f a. m. to 12¿ p. m. and 1 to 7 p. M. in winter. Short time now.”

It appears that after Aug. 1, the mill was run all night, and that on Oct. 19th, the plaintiffs applied to John P. Slade, the defendants’ agent, for permission to run it all night from "now to the end of the policythat, on Oct. 24th, Slade writes that the insurance companies will give the defendants a permit to run their "mill nights for the unexpired time due” on their policies, "by paying J per cent, premium, for three months.” The plaintiffs, on 26th of October, acceded to these terms. Thereupon, Slade the agent of the defendants, indorsed on the plaintiffs’ policy, the following memorandum: —

"Fall River, Nov. 1, 1861.

"In consideration of fourteen and dollars additional premium, paid by the insured, permission is granted that the within named property may be run night and day until the expiration of this policy, without prejudice to the same.”

"John P. Slade, Agent.”

The buildings and property insured were burned on the morning of Nov. 2.

The defendants insist that the answer to the 17th interrogatory is a warranty on the part of the plaintiffs, that their factory is not to be run nights, and that having been broken by running from Aug. 1st to 19th of October, the policy thereby became void; and that thus they are absolved from all legal obligation.

The defendants were not harmed by the running of the mill all night between the first of August and the 24th of October, when their agent stated to the plaintiffs the extra premium he should require for such running. From the answer to the seventeenth interrogatory, it may fairly be inferred that it was expected that at times the mill would be run nights. Whether such running, unattended with loss, would render the plaintiffs’ policy void, it is neither necessary to consider nor to determine.

A forfeiture is to be construed strictly. Its enforcement is not to be favored. It may be waived by the acts and conduct of the party whose right it is to exact it. The renewal of a policy, after the existence of facts which would authorize the insurer to insist upon a forfeiture would be deemed a waiver. Thus the forfeiture, by reason of a misrepresentation or concealment, may be waived by the insurers ; as by receiving a new premium on a fire policy, after the misrepresentation is known. 1 Phil. on Insurance, § 668; Allen v. Vermont Mut. Fire Ins. Co., 12 Vermont, 366. So the act of receiving an additional premium for the variation of a risk, must, in the absence of fraud or concealment, be regarded as having the same effect. It would be a gross fraud to receive a premium for the continuance of a policy or the variation of a risk, with the intention of avoiding the insurance, if the risk provided for should occur, and of retaining the premium in case it should not.

The agent of the defendants testified he knew the plaintiffs had been running their mill nights, when he gave his permission of Nov. 1, 1861. In his letter to the defendants of Nov. 2, he writes, — "they had been working night and day for some time. They wrote to me a few days ago for a permit to work day and night, and agreed to keep a watchman.” The extra premium for permission to run the mill nights was received by the defendants after the loss, and without objection. No complaint appears to have been made on their part of any concealment or misrepresentation on the part of the plaintiffs or of their agent.

Nor is this all. The defendants, by their power of attorney under seal, appointed John P. Slade of Fall River, their agent; " and, as such agent, he is authorized and empowered to receive proposals for insurance against loss or damage by fire, and to make insurances by policies of said New England Fire and Marine Insurance Company of Hartford ; to renew the same, or to vary the risk, according to the rules and instructions he shall from time to time receive from the said company. And all policies. of insurance against loss or damage by fire, issued by said agent, shall be to all intents valid and binding upon the said New England Fire and Marine Insurance Company of Hartford.”

There is no proof that the agent has violated any rules or regulations he may have received from the defendants. His authority is most ample. He may issue polices. He may renew them. He may vary the risk. His acts are "to all intents valid and binding” on the defendants. Notice to him must be deemed notice to the company. The insured had a right to rely on his acts. Indeed, it has been held that a general agent may waive under some circumstances, a condition in the policy that no insurance shall he considered as binding till actual payment. Sheldon v. Atlantic F. & M. Ins. Co., 26 N. Y., 460. Much more would he be deemed to have such right, when powers as ample as in the present case are conferred.

In the policy on the personal property there is found no limitation as to the time the plaintiffs were to run their mill. The plaintiffs might, therefore, so far as regards this risk, run their mill the maximum of time. The two policies have no connection. Each must be construed by itself. The instructions in this .respect were correct. There was no increase of risk within the meaning of the policy — for the plaintiffs were under no restrictions by its terms as to the time they might run their mill.

The letters introduced were legally admissible. They were originals. The plaintiffs were under no obligations to offer more of the letters of the defendants’ agent than they should deem conducive to their interest.

Motion and exceptions overruled.

Cutting, Davis, Walton and Barrows, JJ., concurred.