Sargent v. Canterbury Mut. Fire Ins. Co.

• Decision Date: 05 January 1927
• Citation: 136 A. 124
• Parties: SARGENT v. CANTERBURY MUT. FIRE INS. CO.
• Court: New Hampshire Supreme Court

136 A. 124

SARGENT

v. CANTERBURY MUT. FIRE INS. CO.

Supreme Court of New Hampshire. Merrimack.

Jan. 5, 1927.

Transferred from Superior Court, Merrimack County; Branch, Judge.

Assumpsit upon a Are insurance policy by Walter H. Sargent against the Canterbury Mutual Fire Insurance Company. Verdict for defendant in trial by court. Transferred on exception to ruling. Exception overruled.

The plaintiff, having his property insured by the defendant, sought from its secretary an increase in the amount of the policy. His request being denied, he said:

"I will go into another company and get insured."

Later he applied to one of the defendant's directors for the increase, and, on rejection of the application, he made a similar statement about obtaining insurance elsewhere. No objection was made on either occasion to his going to another company.

The policy contained a clause for its forfeiture if there should be other insurance at the time of any loss without the defendant's written assent. When the policy was issued, and also when the increase in its amount was sought, nothing was said about this forfeiture clause.

On the issuance of the policy the plaintiff signed a deposit note for $20, payable to the defendant as might be required under its bylaws. This note the defendant has retained.

The plaintiff insured the property in another company, and, while the policy of that company was in force, the property burned. Until the fire, the defendant had no notice that such other insurance had, in fact, been taken out.

The plaintiff excepted to a ruling that a finding of waiver of the forfeiture clause or of estoppel against claiming it as a defense could not be made.

Transferred by BRANCH, C. J Nathaniel E. Martin and Alfred W. Levensaler, both of Concord, for plaintiff.

Robert W. Upton, of Concord, for defendant.

ALLEN, J. "The fact of a waiver, like other facts, must be found from some evidence." Maynard v. United States Health & Accident Ins. Co., 76 N. H. 275, 277, 81 A. 1077. Silence, when there is no duty to speak, is no evidence of a waiver. Kilgore v. Loyal Protective Ass'n, 78 N. H. 498, 500, 102 A. 344. In the absence of misrepresentation, the insured is presumed to know the provisions, terms, and conditions of his policy. Lauze v. New York Life Ins. Co., 74 N. H. 334, 338, 68 A. 31, and cases cited.

Silence being a right unless the circumstances are such that it amounts to misrepresentation, the defendant's exercise of the right was no relinquishment of the right of forfeiture. There was no duty to tell the plaintiff that the policy contained the forfeiture clause or that if he obtained insurance elsewhere, the clause would be invoked. The plaintiff had no right to information of the clause other than the policy gave him, or to be informed what the defendant would or might do in taking advantage of the clause in the event of other insurance. The plaintiff was entitled to do as he saw fit about obtaining other insurance, and failure to protest against the exercise of his right or to explain the consequences of such exercise constitutes no evidence that such consequences would not follow, but would be foregone. It is not a fair and reasonable inference that the defendant's silence at the time amounted to a statement that the forfeiture clause would be disregarded in the event of other insurance. All that could have been said to the plaintiff was either that the defendant would or would not or might or might not avail itself of...