King Brick Mfg. Co. v. Phoenix Ins. Co.

• Decision Date: 11 September 1895
• Citation: King Brick Mfg. Co. v. Phoenix Ins. Co., 164 Mass. 291, 41 N.E. 277 (Mass. 1895)
• Parties: KING BRICK-MANUF'G CO. SAME v. PHOENIX INS. CO. et al. SAME v. PENNSYLVANIA INS. CO. SAME v. GRANITE STATE INS. CO. SAME v. INSURANCE CO. OF NORTH AMERICA. SAME v. ROYAL INS. CO. SAME v. ORIENT INS. CO.
• Court: Supreme Judicial Court of Massachusetts

164 Mass. 291

41 N.E. 277

KING BRICK-MANUF'G CO. SAME v. PHOENIX INS. CO. et al. SAME v. PENNSYLVANIA INS. CO. SAME v. GRANITE STATE INS. CO. SAME v. INSURANCE CO. OF NORTH AMERICA. SAME v. ROYAL INS. CO. SAME v. ORIENT INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

September 11, 1895

COUNSEL

F.T Benner, for plaintiff.

O.D Baker, for defendants.

OPINION

LATHROP, J.

To each of the policies of insurance in this case was attached a rider, which first expressed the amount of the insurance, the division of this amount on the several subjects of risk followed by these words: "Situated on east side of Pleasant river, in Columbia Falls, Maine. Steam pump, with sufficient hose to cover buildings. Constant watch." The property insured was the plant of a brick-manufacturing company, where a fire was liable to break out at any time, and which needed the constant care and supervision of a watchman. It was destroyed by a fire breaking out at night, which we assume might have been put out if the watchman employed by the plaintiff for the purpose had been present; but he was absent at the time, through negligence or a misunderstanding, without the knowledge of the plaintiff, or of any one of its officers. The principal question in the case turns on the meaning of the words "constant watch." The presiding justice of the superior court found for the plaintiff in each case, and made the following rulings of law: "(1) The phrase 'constant watch' was not a warranty, but a representation; and it had reference, not only to the time the policy was issued, but also to the future. (2) It must have been true and correct as to things done or existing at the time the policy was issued; and, so far as it related to the future, it was a stipulation to be fairly and substantially complied with. (3) If the plaintiff established a rule that there should be a constant watch, and employed proper servants to execute such rule, and otherwise exercised reasonable supervision to see that the rule was executed, and such rule had been executed up to the night of the fire, a temporary omission to keep such watch on the night of the fire, owing to accident or the negligence of subordinate persons, servants, or workmen, not known to or sanctioned or permitted by the insured, or its superintendent or managing officer or agent, and without negligence on the part of the insured or such officer or agent, would not prevent recovery by the plaintiff in this action, even if the fire would not have occurred but for such omission." We are of opinion that these rulings were right.

The property insured was situated in the state of Maine, and the policies were issued there. The contracts are, therefore, to be construed with reference to the laws of that state. Daniels v. Insurance Co., 12 Cush. 416, 422. Chapter 49 of the Revised Statutes of Maine contains the following section, which is made part of the case: "Section 20. All statements of description or value in an application or policy of insurance are representations and not warranties erroneous descriptions, or statements of value or title by the insured, do not prevent his recovering on his policy unless the jury find that the difference between the property as described and as it really existed contributed to the loss or materially increased the risk; a change in the property insured or in its use or occupation, or a breach of any of the terms of the policy by the insured, do not affect the policy unless they materially increase the risk." We are somewhat embarrassed in construing this statute by the fact that the decisions of the supreme court of Maine afford us but little assistance. The precise question here involved does not appear to have been decided. There are, however, expressions of opinion in several cases which show that the statute is to be liberally construed in favor of the insured. In Campbell v. Insurance Co., 59 Me. 430, 434, the court, speaking of the statute in question, say that it "was not designed to lay any additional stumbling block in the way of the policy holder before his case could be heard upon its merits, and it should not be so construed as to give it that effect." In Emery v. Insurance Co., 52 Me. 322, 325, it is said by the court: "Warranties on these points [the valuation and interest of the insured] are to be treated as representations, and nothing more." And in Day v. Insurance Co., 81 Me. 244, 16 A. 894, it is said "Previous to the enactment of our present insurance law, policies had become so loaded down with provisos, limitations, and conditions that in many cases they secured to the insured nothing better than an unsuccessful lawsuit, in addition to the loss of his property. And one of the purposes of our present statute was to put an end to this evil." The words "constant watch," in the connection in which they occur, may, perhaps, amount to a description of the risk, and, if so, by the terms of the statute they constitute a representation, and not a warranty; but the description cannot be said to be erroneous in this case, for the words in the...