Charles, Henry & Crowley Co. v. Home Ins. Co.
| Decision Date | 07 December 1965 |
| Citation | 349 Mass. 723,212 N.E.2d 240 |
| Parties | CHARLES, HENRY & CROWLEY, CO. Inc. v. The HOME INSURANCE COMPANY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Edwin R. Trafton, Boston (William J. Ryter, Boston, with him) for defendant.
George Alpert, Boston (Irving Karg, Boston, with him) for plaintiff.
Before SPALDING, CUTTER, KIRK, SPIEGEL, and REARDON, JJ.
This case is here on the defendant's exceptions to the judge's denial of nine of its eleven requests for rulings. The first request sought a ruling that, '[o]n all the evidence and the law, a finding for the defendant is warranted.' The judge denied the request 'in view of the facts found and the application of' G.L. c. 175, § 186. 1 The second request, also denied, was for a ruling that the evidence and the law required a finding for the defendant. Our consideration of the disposition of these requests is decisive of the case.
The statement of agreed facts, which was submitted to the judge, recited that the plaintiff, a Boston jewelry firm, on October 6, 1960, made a written proposal to the defendant for a 'Jewelers' Block Policy' insuring against theft from the plaintiff's display windows. Question 14B of the proposal form asked the plaintiff to indicate the maximum value of jewelry to be displayed in the windows. The plaintiff answered that, during business hours, the value of jewelry displayed in '* * * windows * * * outside show cases * * * [or] any one window' would not exceed $14,500 where the window or case was protected by swinging shatterproof glass, and $500 where the window or case was not so protected.
The policy issued by the defendant on November 16, 1960, stated that the proposal form was made part of the policy. The policy also carried a 'Jewelers' Block Combination Endorsement.' Section 1A of the combination endorsement provided that the insurer's maximum liability for theft of displayed jewels during business hours was $14,500 where the jewels were protected by the swinging shatterproof glass, and $500 where unprotected. Section 1B stated: 'It is a condition of this insurance precedent to any recovery hereunder that the values of property displayed will not exceed the amount represented in answer to Question 14B of the Proposal form attached to this policy.'
On the morning of March 24, 1961, while the plaintiff was open for business, a rock was thrown through one of the store's display windows and jewelry worth $13,620 was stolen. At the time of the theft the jewelry on display in the protected area of the window was worth $18,512, and in the unprotected area was worth $1,118.40.
The single question presented is whether the provision in § 1B of the policy, referring to the plaintiff's representation in answer to question 14B that the displayed jewelry would not exceed certain amounts in value was, on the one hand, a condition precedent which, if not complied with, would bar recovery, or was, on the other hand, a representation or warranty which, if not fulfilled, would bar recovery only if the proof required by G.L. c. 175, § 186, was forthcoming. The judge treated the provision as a representation or warranty. He found that the insurer's risk had not been materially increased by the display of the more valuable jewelry and, since the parties had stipulated that there was no intent to deceive the insurer, made a finding for the plaintiff in the sum of $13,620.
We think that the judge was in error. General Laws c. 175, § 186, applies only to representations and warranties and does not apply to conditions precedent included expressly within the terms of a policy. Barker v. Metropolitan Life Ins. Co., 188 Mass. 542, 545, 74 N.E. 945; Giannelli v. Metropolitan Life Ins. Co., 307 Mass. 18, 22, 29 N.E.2d 124; Sullivan v. John Hancock Mut. Life Ins. Co., 342 Mass. 649, 653, 174 N.E.2d 771. The statement made by the plaintiff in the proposal was, at first, a representation. The statement, however, was expressly made a condition precedent to recovery in the combination endorsement.
Whether a warranty or representation made in an applicaion for a policy may be converted into a condition of a policy was briefly discussed but not decided in Everson v. General Acc. Fire & Life Assur. Corp., Ltd., 202 Mass. 169, 172, 88 N.E. 658, where representations respecting income were in a rider paster to a page of an insurance contract under the...
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