Durkee v. India Mut. Ins. Co.

• Decision Date: 19 October 1893
• Citation: Durkee v. India Mut. Ins. Co., 159 Mass. 514, 34 N.E. 1133 (Mass. 1893)
• Parties: DURKEE v. INDIA MUT. INS. CO.
• Court: Supreme Judicial Court of Massachusetts

159 Mass. 514

34 N.E. 1133

DURKEE v. INDIA MUT. INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

October 19, 1893

COUNSEL

Eugene

P. Carver and Edward E. Blodgett, for plaintiff.

L.S Dabney, for defendant.

OPINION

MORTON J.

We think it is clear that there must be a new trial in this case on account of the testimony of Hall concerning the premium which he paid at another time on another vessel.It related to a matter that was wholly collateral.It introduced a distinct issue, which was not involved in nor pertinent to any issue on trial, and which the defendant could have had no just ground to anticipate, and was wholly incompetent.Woolen Co. v. Proctor, 7 Cush. 417;Aldrich v. Pelham, 1 Gray, 510;Lane v. Railroad Co.,112 Mass. 455;Hatt v. Nay,144 Mass. 18610 N.E. 807.

The remaining questions relate principally to certain alleged material misrepresentations.At the argument it was suggested from the bench whether St.1887, c. 214, § 21, did not apply.Counsel were not then prepared to argue the question, and at the request of the court subsequently furnished briefs upon it.We think, upon examination, that the statute applies to marine insurance companies, and that it renders immaterial misrepresentations in regard to policies of insurance by the insured or his agent unless they are made with actual intent to deceive, or unless the effect of them is to increase the risk of loss.Ring v. Assurance Co.,145 Mass. 42614 N.E. 525.The act is entitled "An act to amend and codify the statutes relating to insurance;" that is, all insurance.Section 1 provides that the words "insurance company" shall include "all corporations associations, partnerships, or individuals engaged as principals in the business of insurance," and defines the words "net assets" when applied to marine insurance companies.Section 2 provides that "all insurance companies now or hereafter incorporated *** may exercise the powers and shall be subject to the duties and liabilities provided by this act."Section 11 provides the manner in which the liability of insurance companies upon contracts of insurance relating to marine risks shall be computed, and also contains other provisions in regard to marine insurance companies.Under the caption, "Provisions Common to All Companies," which forms a part of the statute, is section 21, which is as follows: "No oral or written misrepresentation made in the negotiation of a contract or policy of insurance by the assured, or in his behalf, shall be deemed material or defeat or avoid the policy or prevent its attaching, unless such misrepresentation is made with actual intent to deceive, or unless the matter misrepresented increased the risk of loss."There is nothing in this section which, in terms, exempts marine insurance companies from its operation, and there is nothing in the nature of its provisions which should not apply to them equally with other insurance companies.Further on in the chapter (section 52) follow provisions applying specially to "marine and mutual fire and marine companies,"...