Bardwell v. Conway Mut. Fire Ins. Co.
| Decision Date | 04 October 1875 |
| Citation | 118 Mass. 465 |
| Parties | Edwin Bardwell, administrator, v. Conway Mutual Fire Insurance Company |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Franklin. Contract on a policy of insurance by which the defendant insured Justin R. Smith, the plaintiff's intestate, for the term of five years from August 13, 1873 "against loss or damage by fire, under the conditions and limitations hereinafter expressed, in the sum of $ 1300 as follows: $ 1000 on his two story frame dwelling-house and wood-shed connected; $ 100 on his household furniture therein; $ 100 on his barn and shed connected; $ 100 on his hay therein; situate in West Whately, Massachusetts, and occupied by himself for a dwelling and private barn. $ 2200 insurance on said house, $ 300 on the barn, $ 250 on said furniture, and $ 100 on said hay, elsewhere."
The policy contained the following provisions: "This company shall in no event be liable till the actual payment of the premium, nor beyond the sum insured, nor beyond three fourths the actual value of the property insured at the time of the loss or damage." "And the insured hereby covenants and engages that the representation given in the application for this insurance contains a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property insured so far as the same are known to him; and if any material fact or circumstance shall not have been fully represented, or if the insured shall make any attempt to defraud the said company, then, and in any such case, this policy shall be null and void, unless confirmed by a new agreement thereon written after a full knowledge of such facts and circumstances."
"In case of loss, the insured shall forthwith render to said company a particular statement in writing, signed and sworn to by him, of the value of the property insured, the amount of the loss or damage thereon, his interest therein, all other insurance thereon; the purpose for which, and by whom, the building insured, or containing the property insured, was occupied; the cause or origin of the fire, so far as known; and, if required, submit his books of account and other proper vouchers to the examination of the company." "In case of other insurance upon the property hereby insured, whether prior or subsequent to the date of this policy, whether the same shall be binding as a contract of insurance on the parties thereto or not, the insured shall not, in case of loss, receive any greater portion of the loss or damage sustained than the amount hereby insured shall bear to the whole amount insured on said property as herein stated."
At the trial in the Superior Court, before Bacon, J., the evidence was conflicting as to the value of the house and shed destroyed. It was admitted that the Whately Mutual Fire Insurance Company had insured, for the sum of $ 2200, the house and shed described in this policy, and that that company had adjusted the loss by the payment of a sum greater than three fourths of the value of the house and shed as found by the jury. The plaintiff asked the judge to instruct the jury that the defendant company would be liable, in the absence of fraud, for 1/3 0/2 of the actual loss, provided said portion of the loss did not exceed $ 1000; but the judge declined so to rule, and instructed the jury that the plaintiff could in no event recover from both insurance companies more than three fourths of the actual loss, and that if the Whately Company had already paid the plaintiff an amount equal to or greater than three fourths of the actual loss, they should return a verdict for the defendant.
The plaintiff offered evidence tending to show that he had made, under oath, due proof of his loss by such a statement as is required by the terms of the policy, and it appeared by that statement that the insured made oath that the cash value of the dwelling-house and shed, at the time of loss, was $ 4300.
The defendant also offered evidence tending to show that the insured fraudulently...
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