31 Me. 219 | Me. | 1850
It* is contended in the first place, that the
The instruction considered with reference to the testimony would only inform the jury, that the use of a stove in the manner, that the plaintiff informed the witness that it had been used, would not avoid the policy, if the risk was not thereby increased.
It is not difficult to distinguish between a Avarranty and a representation. The latter is a part of the preliminary proceedings, preceding and proposing • a contract. The former is a part .of the contract as completed. Ordinarily, therefore, a statement made in an application for insurance is a representation only.; but it may be incorporated into the policy and thereby become a part of the contract. When thus made a part of the contract what would otherwise have been a representation, becomes a Avarranty. A reference made in the policy to the application will not be sufficient to make it a part of the contract. The Jefferson Ins. Co. v. Cotheal, 7 Wend. 72; Snyder v. The Farmers’ Ins. and Loan Co. 13 Wend. 92; S. C. 16 Wend. 481; 2 Hall, 608. When ,the policy contains a clause declaring, that the application forms a part of the policy, it thereby becomes a part of the contract and its statements are thereby changed from representations into warranties. Burritt v. The Saratoga County Mut. Fire Ins. Co., 5 Hill, 188.
The policy in this case, contains a clause similar to the one found in the policy in that case, “ reference being had to said application for a more particular description, and as forming a part of this policy.” By this clause, the application is made a part of the contract, and its representations become warranties.
Considering the application and the policy as thus forming one contract, the inquiry is presented, whether a correct construction of that contract forbids the use of a stove for a few
The fifth interrogatory, prepared with reference to risks usually assumed, seeks information respecting the number of stoves as ordinarily and habitually used, or as they are accustomed to be used in dwellinghouses and other occupied buildings : and how the stoves and funnels are secured. It does not present the inquiry, whether one might be introduced for a temporary and different use connected with the completion of an unfinished building insured, and not occupied for any other purpose than to complete it. The answer was evidently made responsive to the inquiry thus presented. The language of the interrogatory and answer had reference to the habitual use of stoves not to the temporary use of one, for a purpose connected with the completion of the building. Such appears to have been the construction in similar cases. Dobson v. Sotheby, 1 Moo. & Mal. 90; Shaw v. Robberds, 6 Ad. &. El. 75; Grant v. Howard Ins. Co., 5 Hill, 10.
The statement was true when made, and when considered as a contract or warranty, that no stove should be used, as they ordinarily or habitually are in dwellinghouses, continued to be true to the time of the loss. The testimony does not therefore prove a violation of the contract on the part of the plaintiff; and the defendants can have no just cause to complain of the instructions on this point.
Secondly, it is said, that the statement made on November 30, 1848, that the building was finished, amounted to a warranty, and that being untrue it avoided the policy.
It was not made to obtain further insurance from the defendants; but to obtain their consent, that a greater amount of insurance might be obtained from another company. It is the application for insurance only, and not one for consent, that another company may insure, which is made a part of the policy. This is too plainly stated to require argument.
So much of the instructions on this point, as states it to have been a warranty, must be regarded as erroneous; but the
Considered as a representation it could only be material, as affecting the risk already assumed, by obtaining consent to an over insurance, which might induce the owner to become careless respecting its loss, or tempt him to cause the building to be burned. If no over insurance was effected, the increase of the amount insured, could only operate to relieve the defendants from a part of the risk already assumed, without depriving them of any part of their premium. It is said, that this representation might have the effect to induce the defendants to reduce the premium to “the average standard.” The documents furnished do not clearly exhibit the meaning of that phrase contained in the letter of the defendants’ agent, bearing date on August 27, 1848, when considered and compared with the phrase used in the policy of “ standard rate ten per cent.” Whatever may have been the meaning, there is no proof, that it had any effect to reduce the premium ; and the jury have found that it was not fraudulently made to induce the defendants to reduce it. The jury have also found, that insurance was not then obtained, including the amount obtained from the ether company, but to an amount little more than two-thirds of the actual value, so that no conclusion could be properly formed, that any temptation was thereby held out, injurious to the interests of the defendants. The jury have> also found under the instructions, that this misrepresentation was not material. They might be justified in finding that it was not fraudulently made, when the defendants’ agent admits, that he made, from information obtained from the. plaintiff, a representation on the same day to the other company, that the building insured was unfinished. That a misrepresentation not fraudulently made and not material to the risk, will not prevent a recovery, is established by numerous cases, including those already cited.
3. In the third place it is contended, that there was an over valuation of the property, and that the policy was thereby vacated.
If the first statement of value operated as a warranty, that warranty was kept, and the instructions were not therefore injurious to the defendants. The defendants have not, therefore, been aggrieved by these instructions. There was no representation respecting the value of the building made at the time, when the additional amount of insurance was obtained from the defendants, and if they voluntarily, without any misrepresentation, agreed to insure to more than two-thirds of the value, the policy would not thereby be annulled. Fuller v. The Boston Mutual Fire Ins. Co., 4 Metc. 206.
4. It is insisted, that the verdict ought to be set aside, because the testimony shows, that the loss was occasioned by the gross carelessness of the plaintiff.
There was no representation or stipulation made, that the building during its completion, and while mechanics were at work upon it, should not contain bits of board or shavings. The testimony does not show by whom they were left or placed there ; whether by the workmen or others, or with or without the permission of the plaintiff.
There do not appear to have been any instructions given or requested respecting this matter; and there is no sufficient reason to conclude, that the position could have been sustained upon the testimony introduced or established by the law applicable to it.
The policy would not be annulled or a recovery be prevented by proof of negligence on the part of the plaintiff or his workmen. Dobson v. Sotheby, and Shaw v. Robberds, before cited.
The testimony respecting the value of the building, as well as that respecting the amount of the loss, was conflicting. The jury alone should decide upon the credibility of the testimony of each witness. No sufficient reason appears, to authorize the court to determine, that they must have acted in
Motion overruled, and judgment on the verdict.
