City of Fall River v. Aetna Ins. Co.

• Decision Date: 29 December 1914
• Citation: 107 N.E. 367,219 Mass. 454
• Parties: CITY OF FALL RIVER v. AETNA INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

219 Mass. 454

107 N.E. 367

CITY OF FALL RIVER v. AETNA INS. CO.

Supreme Judicial Court of Massachusetts, Bristol.

December 29, 1914

COUNSEL

Arthur W. Blackman, of Boston, for plaintiff.

F. W Brown and Walter L. Came, both of Boston, for defendant.

OPINION

LORING J.

The defendant, at the trial, contended:

'That the plaintiff could not recover because the policy in question never took effect as a contract, and because if it did take effect as a contract the amount of loss had not been determined by agreement or arbitration, and such arbitration had not been waived.'

'The defendant makes no claim that the building in question became vacant by the removal of the owner or occupant.'

The ground on which the defendant has contended that the policy did not take effect as a contract is that it has brought his case within the rule laid down in Goddard v. Monitor Ins. Co., 108 Mass. 56, 11 Am. Rep. 307, and subsequently applied in Thomas v. Commercial Union Assurance Co., 162 Mass. 29, 37 N.E. 672, 44 Am. St. Rep. 323, and Bowditch v. Norwich Union Fire Ins. Co., 193 Mass. 565, 79 N.E. 788.

That rule is that if the property owned by the plaintiff is not that described in the policy the minds of the parties never met, and for that reason the policy never attached.

The defendant's contention in this case is that the thing described in the policy is a building 'occupied as a contagious hospital,' and that the building owned by the plaintiff, though a contagious hospital, was unoccupied at the date of the policy. It appeared that at the date of the policy and for four years before that date no patient had been in the hospital and no one, not even a caretaker, had been in occupation, although it did appear that the building was fully furnished as a hospital and ready to receive patients at a moment's notice.

The rule laid down in Goddard v. Monitor Ins. Co., ubi supra (and subsequently applied in Thomas v. Commercial Union Assurance Co. and Bowditch v. Norwich Union Fire Ins. Co., ubi supra), is based upon the fact that the risk upon the building described in the policy was a less hazardous risk than that upon the building owned by the plaintiff. In Bowditch v. Norwich Union Fire Ins. Co., 193 Mass. at page 568, 79 N.E. at page 789, the following statement of that rule was made:

'If the question here had been the question of the identification of the building insured, the fact that it was described as a dwelling house would not have been material, although there was a shoe store in the basement and a dry goods store on the first floor. But the question here was not a question of identification. A building used in part as a dwelling house and in part as a store for the purposes of insurance is not a dwelling house but a different kind of building. It costs half as much again to insure it. The defendant agreed to insure the building as a dwelling house. For the purpose of insurance the building in question was not a dwelling house. No contract ever was made insuring this building as it was--part dwelling and part store.'

The fact that the risk upon the building owned by the plaintiff was a more hazardous risk than that upon the building described in the policy was also put in evidence in the earlier cases of Goddard v. Monitor Ins. Co. and Thomas v. Commercial Union Assurance Co., ubi supra.

But in the case at bar there was no evidence that the risk upon a building fitted for use as a hospital and not in fact occupied at all was a greater risk than that on a building fitted for and occupied as a hospital, using the word 'occupied' in the sense of some person or persons being in occupation. For this reason the case at bar was not brought within the rule of Goddard v. Monitor Ins. Co.

Under these circumstances it is not necessary to consider the question whether the description of the building insured ('occupied as a contagious hospital') is a statement that the building was occupied and not vacant, or was a statement that the building was appropriated to the uses of a contagious hospital. Upon that question we intimate no opinion.

At the trial the plaintiff asked for sixteen rulings set forth. The only exception taken by it is stated in these words in the bill of exceptions:

'The court in finding for the defendant did not specifically indicate which of these requests he refused or allowed except so far as the same are indicated by the finding, to all of which the plaintiff duly excepted.'

We are of opinion that the only exception taken was to the refusal to make the rulings asked for.

The case was tried and has been argued on the basis that the facts shown in evidence by the plaintiff were true. Therefore the rule does not apply that...