Dolliver v. St. Joseph Fire & Marine Insurance Company

Decision Date05 April 1881
Citation131 Mass. 39
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesWilliam P. Dolliver & others v. St. Joseph Fire & Marine Insurance Company

Argued November 4, 1880 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Essex. Contract, by the assignees in bankruptcy of Abraham Day, upon a policy of insurance, dated July 9, 1875, by which the defendant insured, for one year from July 3, 1875 "Abraham Day, against loss or damage by fire, to the amount of fifteen hundred dollars: $ 500 on two large frame ice-houses, $ 500 on two sheds, $ 250 on shed about two feet distant from the above, all used for storage of ice, and situate in rear of east side of road leading to Rockport in Gloucester, Mass. $ 250 on frame shed attached to frame ice-houses." The policy contained the following provisions:

"If an application, survey, plan or description of the property herein insured is referred to in this policy, such application, survey, plan or description shall be considered a part of this contract and a warranty by the assured; and any false representation by the assured of the condition, situation, or occupancy of the property, or any omission to make known every fact material to the risk, or an overvaluation, or any misrepresentation whatever, either in a written application or otherwise; or if the assured shall have, or shall hereafter make, any other insurance on the property hereby insured, or any part thereof, without the consent of the company written hereon; or if the above mentioned premises shall be occupied or used so as to increase the risk, or become vacant or unoccupied, and so remain without notice to, and consent of, this company, in writing; then, and in every such case, this policy is void.

"It is a part of this contract, that any person, other than the assured, who may have procured this insurance to be taken by this company, shall be deemed to be the agent of the assured named in this policy, and not of this company, under any circumstances whatever, or in any transaction relating to this insurance.

"Persons sustaining loss or damage by fire shall forthwith give notice of the loss to the company," "and shall also produce a certificate, under the hand and seal of a magistrate or notary public (nearest to the place of the fire, not concerned in the loss as a creditor, or otherwise, nor related to the assured,) stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has, without fraud, sustained loss on the property insured to the amount which such magistrate or notary public shall certify."

After the former decision, reported 128 Mass. 315, the case was tried in this court, before Colt, J., who reported the case for the determination of the full court, in substance as follows:

It was admitted that the premises insured were destroyed by fire in October 1875, and the amount of damages chargeable to this policy was agreed upon by the parties. Day filed his petition in bankruptcy on January 24, 1876, and the assignment to the plaintiffs was dated April 3, 1876.

One ground of defence relied on was, that William P. Dolliver, the magistrate whose certificate was furnished by Day, was disqualified from acting as such magistrate. Upon this subject, it was admitted by the plaintiffs that Dolliver, at the time he gave this certificate, and at the time of the fire, was an unsecured creditor of Day, who then owed him between $ 400 and $ 500; and that he subsequently proved a claim for this debt in the bankruptcy proceedings. The whole amount of Day's indebtedness was about $ 40,000. No evidence was offered that there was any suspicion of Day's insolvency when the certificate was made. It was also agreed, that no objection was made to the certificate on the ground that Dolliver was a creditor until April 16, 1878, when an amended answer was filed setting up this as a substantive ground of defence to this action; and that neither the counsel, nor any officer or agent of the defendant, had any knowledge or information whether Dolliver was a creditor or not until that day.

Upon these facts the judge ruled, that the fact that Dolliver was a general creditor of Day did not render him "concerned in the loss, as a creditor or otherwise," and that his certificate was a sufficient compliance with the terms of the policy; and that, if the certificate was insufficient, the defendant, having failed to make this objection, was estopped from setting it up, or must be held to have waived it.

The defendant introduced evidence tending to show that the ice-houses and the sheds, which had been built for storage of ice, had been leased in 1873 to one Webster, whose business was the cutting and selling of ice; that they were not filled with ice during the winter of 1874-5; that there may have been a few cakes of ice in them remaining over from the previous winter's crop; that the ice crop for the winter of 1874-5 failed, because there was no water in the pond adjoining the ice-houses, and that this was the only reason why the ice-houses were not filled as usual; that there was no ice at all in any of the buildings after April 1875; that the ice-houses were not used for anything after the ice was out, and that wagons and carriages were stored in the sheds.

The defendant contended that these facts showed that the premises were not "used for the storage of ice," as stated in the policy, and that the policy was therefore void, but the judge ruled otherwise, and that the words in the policy were merely descriptive of the buildings.

The defendant introduced evidence, against the plaintiffs' objection, tending to prove that Day applied to John H. Derby, of Salem, to procure insurance for him on these premises; that Derby, who was an insurance broker, thereupon wrote and forwarded an application to Jordan, Lovett & Company, of Boston, general insurance brokers, with a letter requesting them to procure insurance; that Jordan, Lovett & Company thereupon wrote and signed an application, which they sent by one of their clerks to Henry N. Baker, the Boston agent of the defendant company; that Baker; on receiving this application, made inquiry of the clerk in regard to the risk and the occupancy of the buildings, and "bound" the risk for ten days, that the party might furnish information as to those particulars, in order to enable him to decide whether to issue a policy for the proposed term; that, in a few days, on July 9, the same clerk again called on Baker and told him there were no exposures of the buildings and that they were then full of ice; and that on the same day Baker accepted the risk and wrote the policy declared on, made it valid by his counter-signature, and delivered it to the clerk; and it was subsequently sent to Derby, who delivered it to Day.

There was no evidence that Day had any personal knowledge of any of these proceedings; and Derby, called as a witness by the defendant, testified, on cross-examination, that Day never told him there was any ice in the buildings; that he, Derby, had passed by the buildings and had seen them, but had made no examination of them or their contents; and that he knew that, at that season of the year, they would not be likely to have much ice in them; that he had never told anybody anything inconsistent with this, and that he had had no communication or dealing with Jordan, Lovett & Company concerning this risk, except to send them the application and letter.

The judge ruled that even if the clerk of Jordan, Lovett &amp Company made the verbal false statement that the buildings were full of ice to Baker, and if the statement was material, and if Baker wrote and issued the policy relying upon this false statement, it would not avoid the...

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