Hilton v. Phœnix Assur. Co. of London

• Decision Date: 20 December 1898
• Citation: 42 A. 412,92 Me. 272
• Parties: HILTON v. PHŒNIX ASSUR. CO. OF LONDON.
• Court: Maine Supreme Court

42 A. 412

92 Me. 272

HILTON

v. PHŒNIX ASSUR. CO. OF LONDON.

Supreme Judicial Court of Maine.

Dec. 20, 1898.

(Official.)

Report from supreme judicial court, York county.

Action by George W. Hilton against the Phoenix Assurance Company of London to recover on a policy of insurance. Submitted on report. Judgment for plaintiff.

The policy of insurance covered two dwelling houses. The plaintiff claims to recover for a loss sustained on the dwelling house and L No. 2, insured for $800; the barn, insured for $700; and hay therein, insured for the sum of $200. The policy is dated September 4, 1889, and it expired at 12 o'clock noon on the 4th day of September, 1892. The plaintiff claimed that the house, barn, and hay were destroyed by fire on the 1st day of September, 1802, at about the hour of 12 o'clock midnight. The policy expired within two or three days after the date of the fire.

The written portion of the policy relating to the buildings claimed to have been destroyed reads as follows: "$800 on frame dwelling house and L No. 2; $700 on frame barn situate about 100 feet from said dwelling, and $200 on hay therein,—situate in school district No. 0, Wells, Me., and also occupied by the assured."

The first printed condition in the policy provides that the policy shall be void If "any false representation by the assured of the condition, situation, or occupancy of the property, or any omission to make known every fact material to the risk, or an overvaluation, or any misrepresentation whatever, either in a written application or otherwise; * * * or if the abovementioned premises shall be occupied or used so as to increase the risk, or become vacant or unoccupied, and so remain without notice to, and consent of, this company in writing * * * indorsed hereon."

Printed condition 9 in the policy requires that persons sustaining loss or damage by fire shall forthwith give notice of loss to the company, and shall within 30 days render a particular account of such loss, signed and sworn to by them, setting forth certain particulars named in said ninth condition, and provides that the assured shall also produce a certificate under the hand of a magistrate or a notary public nearest the place of the fire. It is also a condition of the policy that "all fraud, or attempt at fraud, by false swearing or otherwise, shall cause a forfeiture of all claim on this company under this policy."

The proof of loss filed by the plaintiff with the defendant company bears date of October 11, 1892, was not accompanied by a certificate of a magistrate or notary, but has a certificate certifying to certain matters, signed by a deputy sheriff, under date of October 17, 1892, and which was later In October filed with the company. The plaintiff claimed in this proof of loss that the buildings destroyed were occupied by him as a residence, and for his stock of cattle, hay, etc., and that there was a total loss to the extent of $2,875, —$1,700 thereof being the value of the house and L, $1,100 the value of the barn, and $75 for hay; and he made claim for the entire amount of the insurance on the house and barn and for $75 loss on hay.

In November, 1892, Mr. C. M. Slocum, the general agent of the defendant company, notified plaintiff that the proof of loss could not be accepted or recognized by the company as evidence of claim under the policy, and that, if the property mentioned in the policy had been burned, the company did not recognize or admit any liability therefor; and further stated that the house had been unoccupied at least 60 days prior to the time of the fire, and called plaintiff's attention to the conditions of its policy. The company claimed that this was a denial of all liability under the policy.

Under date of June 12, 1893, and nearly seven months after this notice from Mr. Slocum, plaintiff signed a written statement under oath, directed to the defendant company, and in which he stated "that said dwelling house at the time of said fire was occupied by me not as a residence." Plaintiff in his proof of loss stated that the buildings in question were occupied by him as a residence, and does not deny this in his statement of June 12, 1893, but claimed that they were occupied by him, though not as a residence, but as occasion might require; and he admitted in his statement that, at the time of the fire, no person was living in the said buildings. The company thereupon claimed that this last statement filed by the plaintiff plainly shows he fully understood the policy was avoided if the buildings were unoccupied, and the inference intended to be conveyed by this statement, as well as by his proof of loss, was that the buildings were occupied in compliance with the terms of the policy.

The plaintiff claimed that Mr. George F. Plaisted acted as the agent of the defendant company in the matter of the issuance of the policy, and put in testimony of certain conversations between plaintiff and Mr. Plaisted. But, on the other hand, the defendant claimed such conversations were between the plaintiff and his own broker, who was not an agent of this defendant company.

Argued before PETERS, C. J., and HASKELL WISWELL, STROUT, SAVAGE, and FOGLER, JJ.

Geo. F. Haley, for plaintiff.

N. & H. B. Cleaves and Stephen C. Perry, for defendant.

SAVAGE, J. Action on policy of fire insurance dated September 4, 1889. The case comes to us on report. It is conceded that the policy was issued and the premium paid, and that the property was destroyed by fire September 1, 1892, within the life of the policy. The policy covered two sets of buildings and other property. The property burned with the insurance upon it is described in the policy as follows: "$800 on frame dwelling house and L; $700 on frame barn situate about 100 feet from said dwelling, and $200 on hay therein,— situate in school district No. 6, Wells, Me., and also occupied by insured." In a previous part of the policy, another dwelling house, also insured, was described as "occupied by assured as a residence."

The dwelling house burned was unoccupied at the time the policy was issued, and remained unoccupied as a residence ever after. The barn, during the life of the policy, was used only for storing tools and hay. The policy was procured of defendant's agent at Kittery, by one Plaisted, a broker, who acted as agent for the plaintiff. October 22, 1892, the plaintiff furnished to the defendant a written proof of loss, signed and sworn to by him, in which he stated that his loss on the house was $1,700, on the barn $1,100, and on hay $75; also that the buildings were occupied at the time of the fire "by the assured as a residence, and for his stock of cattle, hay," etc. November 19, 1892, the defendant, by letter, acknowledged the receipt of the proof of loss, but also stated "that such alleged proof of loss is not accepted or recognized by this company as evidence of a claim under said policy, nor, if the property mentioned therein has been burned, does this company recognize or admit any liability therefor." In the same letter the defendant also said: "Would state, in explanation of above, that, notwithstanding your statement that the house was occupied by you as a residence, we have, we think, good evidence that it was unoccupied at least sixty days previous to the fire. If you will read the conditions of your policy, you will find that makes it null and void." June 12, 1893, the plaintiff gave the defendant notice in writing, under oath, that the statement in the proof that the house was occupied by him as a residence was a mistake made by the person who prepared the proof of loss, and asked that the correction might be made a part of the original proof of loss. The plaintiff also stated that "the dwelling house at the time of the fire was occupied by me, not as a residence, but as occasion might require my attendance at the farm upon which the buildings were situated, no person at the time of said fire living therein, the furniture therein being such as I used when I stopped upon said farm." No reply was made by the defendant.

The defendant sets up nonoccupancy as one ground of defense, and relies upon a condition in the policy which provided that it should be void if there was any false representation by the assured...