Wheeler v. Watertown Fire Insurance

131 Mass. 1 | Mass. | 1881

Soule, J.

The finding that the policy was duly executed, issued and delivered was warranted by the facts stated in the auditor s report. It was immaterial to the defendant how the parties interested in the policy arranged for payment of the pre mium. All that concerned the defendant was that the premium was paid to it with the consent and in behalf of the assured. If the agent of the defendant chose to pay the amount to the defendant, giving credit for the whole or a part to Bemis or to his assignee, such payment was good against the defendant, and entitled the assured to the policy. White v. Connecticut Ins. Co. 120 Mass. 330. And if, as the auditor found, the policy remained in the hands of the agent Stone, it might well be inferred that he held it for the assured, as the payment of the premium was evidence that the policy had been accepted. The case at bar has no likeness to that of Markey v. Mutual Benefit Ins. Co. 126 Mass. 158, relied on by the defendant, in which there was no payment of premium.

The representations in the application are, according to the terms of the policy, to be regarded as warranties on the part of the assured. But, if the defendant proposed to rely on them as such, it was necessary, under the St. of 1864, e. 196, that they should be stated in the body of the policy. As they were not so stated, they fail to have any force. Taylor v. Ætna Ins. Co. 120 Mass. 254, and cases cited.

The evidence warranted a finding that the agent had author ity to permit the policy to continue in force after the house became vacant. His commission as agent authorized him to issue policies, make surveys, consent to the assignment of policies, receive premiums and “ attend to all other duties and business of the agency.” The policy provides that if, without the written consent of the company first obtained, the dwelling-house becomes vacant by removal of the occupant, the policy shall become void. This provision anticipates as probable a state of facts which will make it necessary for the protection of the assured that the written consent of the company to the continuance of the policy after the house became vacant should be given. The agent who issued the policy would be the person to act for the company in the premises, and it would be one of ;he duties and a part of the business of his agency to attend to che matter, and give or refuse the consent of the company as sircumstances should seem to him to warrant. The fact that the consent was not indorsed till after the removal of the tenant had occurred is of no importance. It was within the power of the company, and of its agent in its behalf, to waive the condition, so far as it applied to the short period between the removal of the tenant and the indorsement of the consent. Otherwise, the provision would be of little value to the assured, in many instances, because he would be likely to learn that the house was vacant without having received notice that his tenant was about to leave it.

The policy obtained by Bemis from the Prescott Insurance Company for his own benefit, on his own interest in the property, was not “ prior or subsequent ” insurance, within the meaning of the policy in suit, and did not avoid it. It was insurance obtained by a stranger on his own interest, and could not be controlled or prevented by the plaintiff nor by the assured in the policy sued on. City Savings Bank v. Pennsylvania Ins. Co. 122 Mass. 165. If it were to be regarded as coming within the stipulation in the policy, it would not avoid it, because the policy to Bemis was invalid because it did not state that he had not the sole, entire and unconditional ownership of the property, the legal title being in his assignee, and his interest as mortgagor being only an equitable one. Such invalid policy would not avoid a prior policy of the same assured on the same interest. Jackson v. Massachusetts Ins. Co. 23 Pick. 418. Thomas v. Builders' Ins. Co. 119 Mass. 121.

As the statement of the agent of the defendant that the policy required an appraisal of the loss by arbitrators was made without fraudulent purpose, and the plaintiff had the opportunity, if he had chosen, to examine the policy before signing the submission, and neglected to do so, we are of opinion that the submission was not entered into under a mistake of fact on the part of the plaintiff under such circumstances that he is entitled to avoid the submission, and to prove a greater loss than the arbitrators found.

The result is, that, according to the terms of the case stated, judgment must be entered for the plaintiff for the amount of the appraisal, and interest from March 4, 1879.

Judgment accordingly.