37 Me. 137 | Me. | 1853
— The defendants do not deny, that a prima Jade case has been made out against them, by their policy to Moses Emery and the assignment thereof to the plaintiff and the loss of the property, together with the preliminary proofs required by the Act of incorporation and by-laws, which make a part of the policy. But they do deny their liability, on the ground, that subsequent to their contract of insurance, and the assignment of the same, the plaintiff obtained at the office of the “ Lowell Traders’ and Mechanics’ Mutual Eire Insurance Company,” duly incorporated and organized, an insurance of the same property, and failed to give notice, and obtain the consent of the directors of the defendants, according to the provision contained in section 12 of their Act of incorporation, which is in the following language; — “If any other insurance shall be obtained on any property insured by this company, notice shall be given to the secretary, and the consent of the directors obtained; otherwise the policy issued by the company shall be void.”
It is admitted by the plaintiff, that he did obtain a policy at the office of the Lowell company, on March 4, 1850, but insists that the policy in suit is not affected by the provision in the section of the Act of incorporation referred to, for the following reasons; first, the risks assumed by the two companies were not identical. Second, the rights of the defendants, whatever they might otherwise have been, under this section, were waived by the directors. Third, that the notice of January 20, 1851, was a sufficient notice of the subsequent policy. Fourth, the policy of the Lowell
1. The application of Emery, made on October 8,1849, to the defendants, is -for insurance on the “ Thornton House,” to the amount of $2000, valued at $13000. The second question in the application, to be answered is, “ materials and condition of the buildings.” This question must refer to the building or buildings before mentioned, on which insurance was sought. No building is previously referred to in the application, excepting the “ Thornton House.” The answer is, “ three stories, with an entablature of one moré story in the main house, ell and hall, three stories.” It is manifest that the intention of the applicant was to obtain insurance on the main house, the ell and the hall, under the general term of the “ Thornton House.” The evidence introduced to exhibit the relative situation .of the main house, the ell and the hall, and the manner of their connection one with the other, shows very clearly, that all may be considered as parts of the same house. In the application, in answer to the sixth question, “how are the buildings occupied ?” Emery says, “ rented to James P. Philbrook, late of the Eranklin House, Augusta, Me. for a tavern.” The policy obtained upon this application, is of his “ Tavern House, $2000, situate as described in his application, reference being had to said application, for a more particular description, and as forming a part of this policy.” The application is to be taken as a part of the contract of insurance, in the same manner it would be, if incorporated into the policy itself.
The plaintiff’s application to the Lowell company, of March 4, 1850, is for insurance upon the hotel and hall attached, of $3200, of the value of $10,000, in Saco, on Main street.” A policy of insurance of the same property was obtained on that day. Nothing tends to show that the plaintiff did not consider the ell as a part of the “ Hotel,” and from the imperfect description given of the ell in the evidence, we do not doubt, that it is proper so to regard it.
2 and 3. If the second and third answers to the defence are understood by the Cpui't, they may be considered in connection. In order that the policy in suit may not be void, by § 12, of the Act of incorporation, by a subsequent policy it is made necessary that notice thereof be given to the secretary, and the consent of the directors obtained. The consent of the directors to the second insurance, is the object of the notice, which is not required to be in any particular form, or in writing. It is for the purpose of obtaining the consent, which becomes entirely effectual, however defective the notice may be, if it be obtained. But if the consent is not obtained in express terms, but in such a mode, that of itself it may be of doubtful import, the notice shown to have been given may serve to explain it and give it a character free from doubt.
It is contended by the plaintiff, that the required notice was given on January 20, 1851, in the certificate of E. R. "Wiggin, as a magistrate, containing the statement of the plaintiff, that there was such second insurance. It is true, as the plaintiff contends, that he was not bound by the aforenamed section 12 to give the notice at any precise time; but the policy of the defendants was suspended, after the second was obtained, if the latter was valid, until the notice to, and tlie consent of the directors, so that it would not cover a loss happening during that time.
By § 1 of the Act of incorporation of the defendants, persons sustaining a loss of property insured, shall within thirty days thereafter, give notice of the same in writing at the office of the company. And by article 11, of the by-laws, as soon after the loss as practicable the assured shall furnish the office with a particular account of such loss or damage,
The notice of January 20, 1851, contains many things not required, if the purpose thereof was to obtain the consent of the directors to the second insurance; such as the account of the loss; knowledge or want of knowledge of the cause of the fire; value of the property on which insurance was obtained; the tenure by which the plaintiff claimed it; the dimensions of the buildings, all verified by oath, and accompanied by the certificate of a magistrate most contiguous to the place of the fire.
On the other hand, some things are omitted apparently essential in a notice designed to obtain the consent of the directors to a second insurance; the dates of the policies were not given in this notice; and nothing is found therein from which it can be inferred, that the insurance in the Lowell company was subsequent to the other; no request for consent is expressed or intimated, and nothing from which it would be understood that it was desired. It is, therefore, difficult to come to the conclusion that this paper, with the magistrate’s certificate, so appropriate as a compliance with § 7, of the Act, and of article 11, of the by-laws, and purporting upon its face to be in pursuance of the requirements therein, and so totally inappropriate for any other purpose, given eleven days after the fire, and more than ten months after the second policy was taken, can be treated as designed at all for a notice under § 12. It bears no evidence of such intention, and of itself is insufficient for that purpose. There is no evidence of any other notice, unless it may be found by inference, from the conduct of the directors, relied upon by the plaintiff as proof of a waiver of the right to hold their policy void.
On March 5, 1851, the plaintiff was informed by the letter of the secretary of the defendants, that his claim was rejected by the directors. This letter must be construed to
For the purpose of showing the waiver of the defendants, the plaintiff relies upon the receipt of the treasurer of the company, in the following terms : — “ New England Mutual Fire Insurance Company. Received of J. P. PMlbrook, nineteen dollars and twenty cents, being the amount of the assessments ordered by the directors of the New England Mutual Fire Insurance Company, April 1, 1851, on premium note 6513. “Jno. Whipple, Treasurer.
“Concord, July 23, 1851. By the hand of G. White.”
Upon the back of this' receipt was printed a schedule of losses, from May 16, 1850, to March 29, 1851, inclusive.
It is insisted for the plaintiff, that the defendants cannot hold their policy void, and receive the benefit of his premium note. Hence this assessment and the receipt thereof from him by the proper officer of the company, is a consent to the second policy, and is a waiver of the right to hold the one in suit vacated. Is this proposition true ? No authorities, which we consider bearing directly upon it, and in its support, have been referred to ; and its correctness must be determined upon an examination of the whole contract.
By section 2 of the charter of the defendants, persons, who may at any time become insured under this Act, shall be deemed and be taken to be members of this corporation, during the time specified in the policy. By § 6, every member is bound to pay his proportion of all losses and expenses happening to the company during' his connection therewith; and the buildings insured, witli the land whereon they stand, are held as security of any deposit note of the person so insured, and the policy itself enacts a lien upon the same, for the sum of any such deposit note, and the
After the plaintiff’s loss had occurred, if he' had given sufficient notice. thereof, with a request, that the directors would consent to the second insurance, when the policy was void by the voluntary act of the plaintiff, and they had given their consent, it would have been strongly indicative of bad faith in them to the company. This we are not at liberty to presume; and it cannot be regarded as true without convincing proof.
The directors can do no act in violation of the express provisions of the charter. - Those provisions are for the protection of the company, and the members of it, and their interests cannot be wantonly abandoned. It was evidently contemplated, that when an insurance should be made by the defendants for an amount not exceeding two-thirds of the estimated value of the property insured, that it would be important to them that the assured should not obtain insurance in other companies ad libitum, and thereby essentially increase their risk and diminish their security. It is most manifest that the restriction upon the members of the company, as to subsequent insurances, contained in § 12, had reference to the risks made by the company, while they con-
4. The authorities cited for the plaintiff fully establish the proposition, that a second policy, which is void, does not vacate the first, under such provisions as those contained'in § 12, of the Act of incorporation. And the fact, that the company who issued the second policy paid the amount insured, is of no consequence in the question here involved, if' the payment was made upon a policy clearly void. Various considerations may have had an influence in inducing the payment of the claim. The view most favorable for the defendants is, if it is a doubtful question of construction,.
In article 13, of the by-laws of the Lowell Traders’ and Mechanics’ Mutual Eire Insurance Company, it is provided that all policies which may issue from this company, to cover property previously insured, shall be void, unless such previous insurance be indorsed on the policy at the time that it issues; and when a subsequent insurance shall be made by another company,, or by any person, on property insured at this office, it shall annul the policy, and the premium be forfeited to this company, pnless such double insurance subsist, with the consent of the directors indorsed upon the policy.
So far as this article has reference to a previous insurance in another company, it imports that to- make the policy effectual, the approval of the directors shall appear thereon, at the time it shall issue. This was intended only as evidence of their consent. As no- particular form of words are made necessary, and no requirement that it shall be stated, at what office the insurance was obtained, or the amount covered by the policy, it is not perceived that an express approval and consent in the policy is not as perfect a compliance with this part of the by-law, as that which it was supposed would be necessarily implied from the simplq statement of the insurance upon the instrument.
In Liscom v. Boston Mutual Fire Insurance Company, 9 Met. 205, it was provided in its by-laws, that “ all policies which may issue from this company, to cover property pre
The policy from the Lowell company was made March 4, 1850, and continued for the term of three years. The defendants’ policy was dated October 8, 1849, and was for the same term of time from its date; consequently the latter had two years and more than seven months to run, when the former was made. It may be supposed important for the'plaintiff, that he should have the benefit of the policy already obtained, rather than be at the expense of procuring a new one for the same amount, for the whole time. On the other hand, it would be quite immaterial to the company, whether the former policy should remain effectual, or a new one for the same sum and for the same time should be obtained. Hence when we see the general leave granted, as disclosed by the policy, it is in the highest degree probable, aside from the construction of the particular terms used, that the former insurance was disclosed; and
The terms in the policy, by which other insurances are allowed, does not limit the plaintiff to future insurances; it is permitted that others may subsist; and certainly those made previously, then in existence, are embraced in the consent which is expressed.
But it is believed that by the application of the strictest rules of construction to the language used, the previous insurance is substantially stated on the face of the policy. Something more was evidently intended, than permission to obtain insurances afterwards in other companies; for if such was the extent of the design, it could have been left to be “ indorsed upon the policy,” when done, according to the provision of the same article; or the consent could have been expressed in the policy in the shortest and most precise language; and the use of the terms to keep insured, would be immaterial, inasmuch as the leave for future policies was limited only by the gross amount of three-fourths of the value.
But as the interest of the plaintiff was to retain the benefit of his previous insúrance, and to have permission at the expiration thereof, to have the right of a renewal, or procure insurance from another company, it is manifest that the, intention of the parties was, that this should be secured to him. The meaning of the word keep in Webster’s Diction
He was allowed to keep insured in an additional sum, provided, &c. This secured the privilege of an insurance of a further amount upon the property; and not limited so, that the payment of a loss, by one company would be payment pro tanto for another. Each company, by this language, would be bound to pay the sum for which it became liable independent of the other.
According to the agreement of the parties, the plaintiff' must be ■ , Nonsuit.