14 Barb. 383 | N.Y. Sup. Ct. | 1852
These principles of law are established by the numerous authorities quoted on the argument of this cause and by other acknowledged rules of evidence. That no mere representation made by the insured is a warranty: to constitute a warranty, it must be contained in the policy, or, if contained in another instrument, it must be made part of the policy, by the agreement contained in the policy. Thus the proposals and conditions usually annexed to the printed policy are by its express terms to be used and resorted to to explain the rights of the parties, and a compliance with them is as essential on the part of the insured as if they were written in the body of the policy. The reference made in the old fashioned policies (still prevailing in the city of Mew-York, and used in this case) to the proposals and conditions, does not make the application of the insured a warranty, although, in the mutual policies prevailing in the rest of the state, the application is by their express terms made part of the policy, and so amounts to a warranty. But a mere reference to another paper, as a survey or an application, does not make it part of the policy, nor bind the insured by its contents, as by a warranty. That a warranty must be complied with in all respects, even in those that do not seem to affect the risk; that a representation which is false will avoid the policy if the actual risk were greater than it would be if the representation were true—and it is said that this is so, even if the misrepresentation were honestly made—but that a misrepresentation in a matter that does not affect the risk or the -amount of the premium will not avoid the policy, unless made with an actually fraudulent design.
Although a warranty must be complied with, even in matters that do not seem to affect the risk, yet the courts are liberal to the insured in giving an interpretation to the warranty, and attach» no importance to the printed words, when the written words even impliedly indicate an intention different from the printed; and they have been strict in requiring the insurer, who draws up the policy and deliberately chooses his own language, to use such language as will in its literal understanding clearly convey the intended meaning. Thus, where “ houses
There is reason and necessity for this liberality to the insured; both parties look to the written part of the policy as containing the substance of their agreement. That is prepared by the insurer and in the fewest possible words, and should therefore be considered as allowing all to the insured that either its literal meaning or any fair inference would permit, and in this entirely to control the printed words. This policy insures the plaintiffs against damage by fire on the stock as rope manufacturers, contained in the brick building with tin roof. It accordingly
The building in this case was of brick, with a tin roof; it had iron shutters in all the basement, and first story and in the second story on the side next to the rope walk, but not in other parts of the building. The plaintiffs had insured at the Williamsfeui'gh Insurance Company, and Mr, Hodges, the secretary of that company, on their behalf, requested Mr. Squires to effect insur
The application made by Mr. Squires to the defendants was 3, mere memorandum, and in the short and careless form not
“Wall Richardson & Engles wish insurance on their own &c.
Their stock as rope manufactures cont in the brick building with tin roof iron shutters 1st story occupied as a storehouse on the northerly side of and ab* 42 feet distant from the rope-walk at Bushwick L. I
1000 by Guardian
1.000 “ Hudson
3.000 “ H. Am.
2.000 “ East River.
2000 wanted 4 mo. from this date short rate.”
Then added by Phillips, “ 2000 from 4 mo for 6 a 50c $10
Binding
And in the margin, by whom written is uncertain, “ 87-|- $5000.”
The application is not a contract, nor a part of the contract, •but is a representation, and is material only as a defense for the defendants to show that it naturally misled them in a material matter, and so caused them to make an insurance which they would not have made at the rate they agreed to, if they had not been so misled. It is received therefore as part of the evidence ■to the jury and not to the court, to show that the defendants did not know the true state of the risk on account of the insured’s fault. And if the jury were satisfied that the survey was seen by the defendants, then they would conclude that they were not misled, either by the supposition that the whole building was occupied as a storehouse, or that iron shutters were to all the windows. When the application stated that the article to be insured was the plaintiffs’ stock as rope manufacturers contained in the brick building, &c. it at least intimated that the stock was to be manufactured in that building, so much so at least as to notify the company that the subsequent words “ occupied as a storehouse,” did not indicate the entire purposes for which the house was occupied; then the words “iron shutters, 1st story,” might be considered as stating only that there were iron shutters on the first story. And if the application is to be read,
Another question for the jury to pass upon in this case, if they should conclude that there was misrepresentation, was whether that misrepresentation was material; in other words, was it such as effected the risk, or the rate of premium. Probably, with a view to this question, the plaintiffs’ counsel put the question, “Was 87-|- cents a fair rate in September, 1843, for a building like this, and occupied as this was ?” And it was answered very fully; the witness showing particularly how the building would be charged if not so occupied, and the additions for the extra risks. Mr. Phillips, also, the defendants’ witness, stated the current rate of premium for this building occupied as it was, and he said the current rate would be two per cent. On his cross-examination he was asked not an assumed but a supposed case, viz: “ If four companies had insured the plaintiffs’ buildings at 87¿ cents on the $100, knowing the facts, would the current rate have been two per cent a year 7” This was no more than fair on a cross-examination, and in substance was asking him whether, in the case supposed, he would call two per cent the current rate. A like question as to what would be the current
The rate of premium paid may not be any proof of what risks the insured agreed to run, or in other words, of what the contract actually was; but in answer to proof of a misrepresentation, it might be shown, that the misrepresentation did not vary the risk, and so that there was a current rate for each of the risks, and that the rate for the actual risk and for that represented was the same. The only objection to this could be that the jury and not the witnesses were to judge of the risk; but that objection was not presented here, and could not be by the defendants as they introduced this kind of proof, and the plaintiff’s was received only to meet their proof.
The court was asked to charge the jury that the application was a warranty that the building was only a storehouse. It was a representation and not a warranty, and the question was left to the jury whether the occupation differed in any material respect from the representation. The court was next asked to charge that if the application was a representation, it was to be visited with all the consequences of a warranty. This also was wrong ; it would destroy the distinction between a representation and a warranty. The court, as requested, charged that Mr. Squires was not the agent of the defendants, and that the application by him was the application of the plaintiffs. The judge also charged, in substance, according to the fifth request, that if the building was so occupied as to increase the risk beyond the representation, and the defendants did not know how it was occupied, the poEcy was void. The sixth request was the same in substance, hut more specific.
Edwards, Mitchell and Roosevelt, Justices.]
As this is a case made with liberty to turn it into a bill of exceptions, the court was also appealed to, to set aside the verdict as against the weight of evidence. The evidence seems to the court to sustain the verdict.
The motion to set aside the verdict is denied, with costs.