Ring v. Phoenix Assur. Co.

• Decision Date: 03 January 1888
• Citation: 145 Mass. 426,14 N.E. 525
• Parties: RING et al. v. PHOENIX ASSUR. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 426

14 N.E. 525

RING et al. v. PHOENIX ASSUR. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1888

COUNSEL

L.W. Howes and J.H. Millett, for plaintiffs.

The defendant had full knowledge before it issued the policy as to what the premises were, and how and for what purpose they were then used, and to be used, during the period covered by the policy. Ring's answers to Powell's questions were, at most, representations, and were not warranties. Pub.St. c. 114, § 138; Daniels v. Insurance Co., 12 Cush. 416; Luce v. Insurance Co., 105 Mass. 301. See, also, Railroad Co. v. Insurance Co., 98 Mass 426. Answers by the plaintiffs, under a mistake of the full meaning of the questions put, with no intent to deceive, even though erroneous, would not affect the policy. Corrigan v. Insurance Co., 122 Mass. 299; Hinckley v Insurance Co., 140 Mass. 38, 1 N.E. 737. The language "frame dwelling-house, known as the 'Pebbly Beach House,' on Ocean avenue, Bass Rocks, Gloucester, and occupied all the year round," are simply words of description as to where the insured property was, and are not, in law, warranties. These contracts are to be not only fairly, but liberally, construed, being often made by persons but little acquainted with legal forms and technicalties. The extreme doctrine of literal warranty should not be applied to them. Allen v. Insurance Co., 5 Gray, 384, 389; Insurance Co. v. Johnson, (Alabama Sup.Ct., May 4 1887, reported in 2 South.Rep. 125.) Statements are representations and not warranties, unless clearly made so by the policy. Pub.St. c. 119, § 138; Daniels v. Insurance Co. supra; Houghton v. Insurance Co., 8 Metc. 114 120-122; Elliott v. Insurance Co., 13 Gray, 139. The plaintiffs claim that there was no time, during the period covered by the insurance, when the premises were not occupied, within the true intent and meaning of the policy and the understanding of the defendant. Harrington v. Insurance Co., 124 Mass. 126. What constitutes a dwelling-house? "It is the apartment, building, or cluster of buildings, in which a man with his family resides." "One need not so construct it that all its rooms will be under one roof." " 'Dwelling-house" embraces the entire congregation of buildings; whether main and auxiliary, or of separate rooms under one roof, the result is the same." State v. Clark, 1 S.W.Rep. 332; Bish.St.Cr. (2d Ed.) § 278; Chase v. Insurance Co., 20 N.Y. 52. See, also, Blake v. Insurance Co., 12 Gray, 265; White v. Fire Ass'n Co., 8 Gray, 566. "Occupied all the year round" is a mere description; but, even though a warranty, and the premises were unoccupied within the meaning of the law for some period of time after the policy was issued, and preceding the fire, the policy would only be suspended or inoperative for the time being, and would be revived again when the occupancy was restored, unless the premises were left unoccupied for such length of time, and at a time so near the time of the fire, as to increase the risk. Hinckley v. Insurance Co., 140 Mass. 38, 1 N.E. 737; 1 Phil.Ins. § 975. See Gamwell v. Insurance Co., 12 Cush. 167; Luce v. Insurance Co., 105 Mass. 297. In the case in New Hampshire, relied upon by defendant, (Moore v. Insurance Co., 6 Atl.Rep. 27,) the premises had not been occupied for about four months immediately preceding the fire, hence it is not parallel in any respect with the case at bar. Answers to questions propounded by the insurers, unless clearly shown by the form of the contract to have been intended by both parties to be warranties, to be strictly and literally complied with, are to be construed as representations, as to which, substantial truth in everything material to the risk is all that is required of the insured. Moulor v. Insurance Co., 111 U.S. 335, 4 S.Ct. 466; Campbell v. Insurance Co., 98 Mass. 381; Daniels v. Insurance Co., 12 Cush. 416.

J.D. Bryant, I.H. Sweetser, and A. Russ, for defendants.

In this commonwealth, as elsewhere, in the absence of question as to the fact of misrepresentation, the question whether the same was material or not has frequently been determined by the court. Lewis v. Insurance Co., 10 Gray, 508; Wood v. Insurance Co., 126 Mass. 316. See, also, Davenport v. Insurance Co., 6 Cush. 341; Hayward v. Insurance Co., 10 Cush. 444; Mulry v. Insurance Co., 5 Gray, 544; Luce v. Insurance Co., 105 Mass. 301; Ashworth v. Insurance Co., 112 Mass. 422; Poor v. Insurance Co., 125 Mass. 274; Litch v. Insurance Co., 136 Mass. 491; Sleeper v. Insurance Co., 56 N.H. 401; Cook v. Insurance Co., 70 Mo. 610. That non-occupancy was deemed by the parties material, and an increase of risk, is further shown by the fact that they agreed in the policy that if non-occupancy continued for 30 days, without the consent in writing of the company indorsed thereon, the policy should be void. See Foundry v. Insurance Co., 1 Cliff. 300, 307. The attention of the court is called to the effect of misrepresentations in regard to matters found material, which, by Pub.St. c. 119, § 181, is made equivalent to misrepresentations made (a) with intent to deceive; or (b) whereby the risk of loss is increased. The provision in the policy to which the presiding judge called the attention of the jury, that the policy should be void if any material fact or circumstance stated in writing has not been fairly represented, is not the only ground or warrant for avoiding a policy for misrepresentation. Towne v. Insurance Co., 7 Allen, 51; Campbell v. Insurance Co., 98 Mass. 381. The statute provision (Pub.St. c. 119, § 181,) is broader than that of the policy. It includes, in terms, misrepresentations, oral or written, of material facts. It recognizes the doctrine settled in this commonwealth, that misrepresentation of material facts made in obtaining a policy will avoid the policy. It is submitted that the words "not fairly represented," as used in the policy, and "misrepresented," as used in the statute, are in pari materia, and synonymous. See Insurance Co. v. Lawrence, 2 Pet. 25, 10 Pet. 507 Fairness, or not, is to be determined with reference rather to the effect of the representation on the underwriter, than to the intent or frame of mind of the maker of the representation. Carter v. Boehm, 3 Burrows, 1909, cited with approval in Clark v. Insurance Co., 6 Cush. 352, and again in Kimball v. Insurance Co., 9 Allen, 543; Livingston v. Insurance Co., 7 Cranch, 535; Baxter v. Insurance Co., 3 Mason, 96; Carpenter v. Insurance Co., 1 Story, 57; Stetson v. Insurance Co., 4 Mass. 336; Bryant v. Insurance Co., 22 Pick. 200; Vose v. Insurance Co., 6 Cush. 48; Davenport v. Insurance Co., Id. 341; Sawyer v. Insurance Co., 6 Gray, 221, 223; Lewis v. Insurance Co., 10 Gray, 513; Kimball v. Insurance Co., 9 Allen, 540. It is submitted that the instruction given, that the words "fairly represented," as applied to matters found material, mean much the same as "honestly and innocently represented," and that an innocent mistake, as to matters of this kind, would not avoid the policy, nor affect the rights of the plaintiffs under it, was erroneous, and calculated to mislead the jury.

The words by which the risk was described in the application were also made part of the policy. It was a policy "on household furniture," etc., "all while contained in the frame dwelling-house, known as the 'Pebbly Beach House,' Bass Rocks, Gloucester, Mass., (on Ocean avenue,) and occupied all the year around." The importation into the contract of these words, which, in the application, may have been regarded as words of representation only supersedes all questions as to their materiality, and makes them essential parts of the contract and warranties. Fox, Warr.Ins., and cases cited, passim; Sillem v. Thornton, 3 El. & Bl. 868; Hazard's Adm'r v. Insurance Co., 8 Pet. 557; Fowler v. Insurance Co., 6 Cow. 673, 7 Wend. 270; Roberts v. Insurance Co., 3 Hill, 501; Jennings v. Insurance Co., 2 Denio, 75; Burritt v. Insurance Co., 5 Hill, 188; Frost v. Insurance Co., 5 Denio, 154; Egan v. Insurance Co., Id. 326; Kennedy v. Insurance Co., 10 Barb. 285; Duncan v. Insurance Co., *42 N.Y. 394; Vandervoort v. Smith, 2 Caines, 155; Bryce v. Insurance Co., 55 N.Y. 240; Wood v. Insurance Co., 13 Conn. 533; Lyons v. Insurance Co., 14 R.I. 109; Higginson v. Dall, 13 Mass. 96; Higgins v. Livermore, 14 Mass. 106; Atherton v. Brown, Id. 152; Houghton v. Insurance Co., 8 Metc. 114; Vose v. Insurance Co., 6 Cush. 42; Daniels v. Insurance Co., 12 Cush. 416; Blood v. Insurance Co., Id. 472; Lee v. Insurance Co., 3 Gray, 583; Kimball v. Insurance Co., 9 Allen, 540; Campbell v. Insurance Co., 98 Mass. 389; Goddard v. Insurance Co., 108 Mass. 56; Taylor v. Insurance Co., 120 Mass. 254; Wheeler v. Insurance Co., 131 Mass. 1. See McCluer v. Insurance Co., 43 Iowa, 349; Hoxsie v. Insurance Co., 6 R.I. 517; Foot v. Insurance Co., 61 N.Y. 571. The fair implication from Pub.St. c. 119, § 133, is that, so far as the application is incorporated into the policy, it shall, to that extent, be considered part of the contract and a warranty. See Miles v. Insurance Co., 3 Gray, 580; Kennedy v. Insurance Co., 10 Barb. 285, 290. It has repeatedly been decided that the place where personal property, which is the subject of insurance, is situated, is as material as if that place were itself the subject of the insurance, and that when that description is made part of the policy, it is a warranty that the personal property shall continue so situated during the term of the policy. Lyons v. Insurance Co., 14 R.I. 109; Foundry v. Insurance Co., 1 Cliff. 305; Wall v. Insurance Co., 7 N.Y. 370; Kennedy v. Insurance Co., 10 Barb. 285; Haws v. Fire Ass'n, 7 Atl.Rep. 159; McCluer v. Insurance Co., 43 Iowa, 349; Pearson v. Assurance Co., L.R. 1 App. 498; ...