Wood v. Hartford Fire Insurance Co., 13 Conn. 533

Wood v. Hartford Fire Insurance Co.

13 Conn. 533 | Conn. | 1840

Shehmaiv, J.

It is not necessary to advert to all the points which have been discussed in this case, by the learned what constitutes a The general rule in regard to counsel. warranty, in a contract of insurance, is well settled. Any statement or description, or any undertaking bn the part of the insured, on the face of the policy, which relates to the risk, is a warranty. Whether this is declared to be a warranty lotidem verbis, or is ascertained to be such, by construction, is immaterial. In either case, it is an express warranty, and a condition precedent. If a house be insured against fire, and is described in the policy as being “ copper roofed,” it is as express a warranty, as if the language had been, “ warranted to be copper roofed and its truth is as essential to the obligation of the policy, in one case as in the other. In either case, it must be strictly observed. There may often be much difficulty in ascertaining from the construction of the policy, whether a fact, quality or circumstance specified, relates to the risk, or is inserted for some other purpose — as to shew the identity of the article insured, &c. This must be settled, before the rule can be applied. But when it is once ascertained, that it relates to the risk, and was inserted in reference to that, it must be strictly observed and kept, or the insurance is void. The word “ warranted” dispels all ambiguity, and supersedes the necessity of construction. If a house be insured against fire, and the language of the policy is, “ warranted, during the policy, to be covered with thatch,” the insurer will be discharged, if, during the insurance, the house should be covered with wood or metal, although his risk is diminished; for a warranty excludes all argument in regard to its reasonableness, or the probable intent of the parties, “ It is quite immaterial,” says Marshall,on Insurance, 249.] “ for what purpose, or with what view, it is made ; or whether the assured had any view at all in making it: — unless he can shew, that it has been literally fulfilled, he can derive no benefit from the policy.” And he adds, [page 251.] that “ it is also immaterial to what cause the non-compliance is attributable; for if it be not in fact complied with, though, perhaps, for the best of reasons, the policy is void.” These positions are in conformity with numerous and high authorities, and with the reason of the rule. Parties may contract as they please. When a *545condition precedent is adopted, the court cannot enquire as to its wisdom or folly, but must exact its strict observance. An entry on the margin of the policy, or across the lines, or on a separate paper, expressly referred to in the policy, will be construed a warranty, if it relates to the risk ; that is, if it defines, or, in any respect, limits, the risk assumed. It may, indeed, where the explicit language of a warranty is not adopted, be difficult to ascertain, whether, on a fair construction, the clause was meant to define or limit a risk; but when this is ascertained, the insured has no right to dispense with it, or substitute in its place another risk, however advantageous to the insurer. No man can be compelled to adopt a better bargain than his own.

It is immaterial whether the non-performance or violation of the warranty, be with, or without, the consent or fault of the insured. Its strict observance is exacted, by law; and no reason or necessity will dispense with it.

The argument of the defendants is, therefore, conclusive, if the policy warrants this building to be and continue a paper-mill, and it was not one, at the time of the loss.

In the policy, this establishment is described as “ the one undivided half of the paper-mill, which they [the insured] own at IVestville, together with the half of the machinery, wheels, gearing, &c.; the other half being owned by William Buddington.” If this relates to the risk, it is a warranty. That it does, is evident from the memorandum in the conditions of the policy, where “ paper-mills” are enumerated among those articles which “ will be insured at special rates of premiumthat is, a paper-mill is the subject of peculiar risks, and is to be insured upon special stipulations. Therefore, the description of this, in the policy, as a “ paper-mill,” relates to the risk, and is, consequently, a warranty. It is the only subject of insurance; and if it was not a paper-mill, at the time of the loss, the warranty was not kept, and the plaintiffs cannot recover, although the change may have diminished the hazard, and been effected without their knowledge, or against their will.

It is contended, that the paper-mill had become converted into a grist-mill. The policy is dated in February, 1837. In the August, following, the use of the paper-mill was discontinued, and a pair of mill-stones were added, for grinding *546Srain- They were located in the place previously occupied by the rag-cutter and duster ; and were moved by the same . ^ gearing, and by the power of the same water-wheel. No °^eic' machinery was used for the grindstones. All remained as it was, except the rag-cutter and duster; — which were dismounted — and all the other machinery might, at any time, have been employed in making paper. It was, to all intents and purposes, a paper-mill, ready for use. The character of the establishment was no more altered, than if a grindstone had been attached, by a band, to the water-wheel, and all the other machinery left at rest. The warranty was duly kept.

It has been further contended, that the defendants are absolved from their obligations, by reason of the increased hazard resulting from the use of the mill-stones. In most cases of insurance, circumstances occur, which increase the hazard ; but whether they impair the policy, must depend on its construction, or on the general principles of the law of insurance. The jury have found, that by the use of the millstones the risk is greater than it would have been if no use were made of the premises, but not greater than if the paper-mill only was in full operation; but that they were not the cause of the loss. Admitting that, as the facts were, the hazard was increased, by the use of the mill-stones ; yet, to this claim of the defendants, the policy itself furnishes a satisfactory answer. It provides, that if, without the written agreement of the company, the building shall be appropriated for carrying on any trade, business or vocation, or for the storing of any articles, “ denominated hazardous or extra-hazardous,” in the annexed conditions, the insurance shall be of no effect, so long as the same shall be so appropriated. In the conditions annexed, grist-mills are not denominated hazardous or extra-hazardous, but enumerated in the memorandum relating to special rates of premium. They were under the consideration of the parties, and advisedly omitted from that class, which should affect the validity of the insurance. An effect of the memorandum is, to exclude from insurance the articles which it embraces, unless specially provided for in the policy; but they are purposely distinguished from those which affect its validity.

It is admitted, that the loss has happened, by the risk insured against; and that all the preliminary steps, to entitle *547the defendants to the benefit of the policy, have been taken. 1 he property insured has not been changed ; the warranty has been kept; and the obligations of the defendants have not been impaired, by any increase of hazard, resulting from the alterations in the mill.

We advise that judgment be entered for the plaintiffs.

In this opinion the other Judges concurred, except Williams, Ch. J., who gave no opinion, being nearly related to one of the stockholders in The Hartford Fire Insurance Company.

Judgment for plaintiffs.