Atherton v. British Am. Assur. Co.

• Decision Date: 25 January 1898
• Citation: 39 A. 1006,91 Me. 289
• Parties: ATHERTON v. BRITISH AMERICA ASSUR. CO.
• Court: Maine Supreme Court

39 A. 1006

91 Me. 289

ATHERTON

v. BRITISH AMERICA ASSUR. CO.

Supreme Judicial Court of Maine.

Jan. 25, 1898.

(Official.)

Action by Catherine H. Atherton against the British America Assurance Company. Verdict for plaintiff. Motion by defendant for a new trial. Overruled.

Tascus Atwood, for plaintiff.

H. W. Oakes, for defendant.

FOSTER, J. Action upon a policy of insurance against fire upon the plaintiff's one-story frame building and addition, a soda fountain and appurtenances thereto, and upon her stock in trade, consisting of tobacco, cigars, fruit, confectionery, etc.

The verdict was for $291.85, and the case comes before the court on a motion to set the verdict aside, and four grounds are urged in support of the motion:

First. That, contrary to the conditions of the policy, the building insured was on ground not owned by the plaintiff.

Second. That fireworks were kept upon the premises.

Third. That the plaintiff was guilty of fraud and false swearing.

Fourth. That the fire was caused by the direction and procurement of the plaintiff.

It is true that the policy provides that it shall be void if the subject of insurance be a building on ground not owned by the insured in fee simple. In this case the building was on leased land, and was not owned in fee simple by the plaintiff.

But the statute (Rev. St. c. 49, § 20) provides that erroneous descriptions of value or title by the insured shall not prevent a recovery upon the policy unless the jury find that the difference between the property as described and as it really existed contributed to the loss, or materially increased the risk, and that a breach of any of the terms of the policy by the insured does not affect the policy unless they "materially increase the risk."

In a suit upon the policy the question of enhanced risk is properly one for the jury, rather than the court. Sweat v. Insurance Co., 79 Me. 109, 8 Atl. 457; Gilman v. Insurance Co., 81 Me. 488, 496, 17 Atl. 544; Bellatty v. Insurance Co., 61 Me. 414; Rice v. Tower, 1 Gray, 426, 430. In reference to the keeping of fireworks upon the premises, the evidence discloses that only a small amount was kept in a zinclined ice chest. The testimony was sufficient, we think, in warranting the jury in coming to the conclusion that the defendant failed in its burden of showing that this fact materially increased the risk.

Whether the plaintiff was guilty of fraud and false swearing was also a question addressed to the judgment of the jury, and by their verdict they have negatived that fact.

Fraud and false swearing imply something more than some mistake of fact or honest misstatements on the part of the assured. They consist in knowingly...