Sleeper v. N.H.F. Ins. Co.

• Court: Supreme Court of New Hampshire
• Citation: 56 N.H. 401
• Parties: Sleeper v. N.H. F. Insurance Co.
• Decision Date: 20 March 1876

56 N.H. 401

Sleeper
v.
N.H. F. Insurance Co.

Supreme Court of New Hampshire

March 20, 1876

Insurance---Mistake---Construction of sec. 2, ch. 157, Gen. Stats.---Fraud.

The defendants, a joint-stock insurance company, issued a policy insuring the plaintiff against loss or damage by fire to the amount of $600, on his house, shed, and barn. The policy contained a condition that it should be void if the premises should become vacated by the removal of the owner or occupant without immediate notice to the company and consent indorsed on the policy. The buildings were occupied by a tenant at the date of the policy, and continued to be thus occupied until July, 1871, when he left and went to Laconia, his family leaving a short time before he did. He settled for the rent until the following May. He had but little furniture, a portion of which he took away, and a portion was left in the house. When he left, it was his intention to return the next spring, or, if business should be dull at Laconia, to return earlier. The buildings were destroyed by fire October 30, 1871. He did not, before the fire, decide to return at any definite time. No person lived in the buildings after he left. Neither the plaintiff nor the defendants had any notice that the tenant had left the premises, until after the fire. The referee, to whom the action was sent, found, as a matter of fact, that the premises at the time of the fire were vacated within the meaning of the policy, but submitted to the court whether the question whether the buildings were vacated properly arises as a question of law upon the foregoing facts. Held, that upon such facts appearing, the buildings must be considered as vacated: held, also, that the failure to give notice was not a "mistake," within the intendment of the statute, which provides that "no policy shall be avoided by reason of any mistake or misrepresentation, unless it appears to have been inten- [56 N.H. 402]

tionally and fraudulently made; but the party insuring, in any action brought against them on such policy, may show the facts, and the jury shall reduce the amount for which such party would otherwise be liable as much in proportion as the premium ought to have been increased if no mistake or misrepresentation had occurred." Chamberlain v. Insurance Co., 55 N.H. 249, on this point overruled.

The plaintiff made affidavit that the value of the property destroyed was $1,000, understanding that the value was materially less, although as much as the amount insured. His purpose was, to induce the company to make a speedy settlement, and to prevent controversy in regard to his being entitled to the full amount insured. Held, that this was such fraud as vitiated the policy by virtue of that provision which provided that "all fraud or attempt at fraud on the part of the insured shall cause a forfeiture of all claim under the policy."

From MERRIMACK Circuit Court

ASSUMPSIT, upon a policy of insurance. The action was sent to a referee, who, at the April term, 1875, made his report as follows:

The property insured was situated in New Hampton. The plaintiff applied in Franklin to the defendants' agent; and, upon the representation of the plaintiff, the agent, who had no knowledge of the property except what the plaintiff told him, issued a policy, a copy of which is hereto annexed, and received six dollars for the premium thereon.

The plaintiff claimed at the trial that, in the absence of fraud, the valuation agreed upon by the parties and set forth in the policy was final and conclusive; but the referee ruled otherwise, and permitted the defendants to show that the premises insured were worth less than $600, and the plaintiff excepted.

The buildings were totally destroyed by fire October 30, 1871.

John H. Colfas occupied the premises at the time of the insurance, and until some time in July, 1871, when he left and went to Laconia, his family leaving a short time before he did. He had settled the rent for the premises until the following May. Colfas had but little furniture. A portion of what he had was taken away, and a portion was left in the house; but in what proportions did not appear. The wearing apparel of himself and family was carried away. When he left, it was his intention to return the next spring, or, if business should be dull at Laconia, to return earlier. He did not, before the fire, decide to return at any definite time. No person lived in the buildings after he left. Neither the plaintiff nor the defendants had any notice that Colfas had left the premises, until after the fire.

If the court shall be of the opinion that the question whether the premises were vacated, within the meaning of that clause in the policy which provides that "If the premises hereby insured become vacated by the removal of the owner or occupant, without immediate notice to the company and consent endorsed hereon * * this policy shall be [56 N.H. 403]

void," properly arises as a question of law upon the foregoing facts, then I submit that question to the court; but if the court shall be of the opinion that it is incumbent on me to determine that question as a question of fact, then I find that, from the time Colfas left, the premises were vacated within the meaning of the policy.

I find that this change in the occupation of the premises constituted a material increase of the risk, and that, upon the facts proved showing said change of occupation, all of which are hereinbefore stated, the plaintiff ought to have paid an increased premium of $10, in order to make a reasonable compensation to the company for the increased liability of the buildings to be burned.

The only evidence tending to show that non-occupation of buildings materially increases the risk from fire was furnished by the secretary of the defendant company in answer to the following questions, which were ruled in, subject to the plaintiff's exceptions: "State, as an insurance man, whether or not there is any increased hazard by buildings being unoccupied?" "What is the increased hazard?"

I find that the value of the buildings at the time of the fire was $450, and that the plaintiff suffered damage by fire upon the property insured to the extent of $450.

November 4, 1871, the plaintiff furnished to the company a proof of loss, sworn to before a justice of the peace on the same day, in which, among other things, he stated that "a fire occurred on the 30th day of October, 1871, by which loss and damage was sustained to the property insured, as set forth in detail---see schedule A, hereto attached---to the amount of one thousand dollars; and I claim of your company six hundred dollars. The whole value of the property at the time of the fire was one thousand dollars, as set forth in schedule B, hereto attached." There was no schedule A attached. Schedule B was as follows: "House, shed, and barn attached, $1,000."

I find that, at the time of making oath to the foregoing affidavit, the plaintiff understood that his loss and damage upon the property insured was materially less than $1,000, and also understood that the value of said house, shed, and barn, at the time of the fire, was materially less than $1,000. I find it to be probable that the plaintiff, at the time of making said affidavit, believed his loss and damage upon the buildings insured to be as much as $600, and believed himself to be fairly entitled to recover of...