Spalding v. New Hampshire Fire Ins. Co.

• Decision Date: 03 June 1902
• Parties: SPALDING v. NEW HAMPSHIRE FIRE INS. CO.
• Court: New Hampshire Supreme Court

52 A. 858

71 N.H. 441

SPALDING

v. NEW HAMPSHIRE FIRE INS. CO.

Supreme Court of New Hampshire. Hillsboro.

June 3, 1902.

Exceptions from superior court; Peaslee, Judge.

Action by Herbert E. Spalding against the New Hampshire Fire Insurance Company. There was a verdict for plaintiff, and the case was transferred to the supreme court. Exceptions overruled.

The plaintiff's evidence tended to prove the following facts: While his buildings were insured in another company for $900, and his household furniture for $100, he applied to Keyes, the defendants' agent to solicit insurance, write policies, and collect premiums, for $1,500 additional insurance on the buildings, and $500 on furniture, etc.; informing Keyes of the existing insurance. Keyes promised to write the additional insurance, and a few days later delivered to the plaintiff a policy, and received the premium. This and the prior policy were of the standard form, and each contained a provision that it should be void "if the insured at the time of any loss has any other insurance on said property, without the assent, in writing or in print, of the company." The plaintiff did not examine the policy, and supposed it was made in accordance with his agreement with Keyes. The buildings and their contents were destroyed by fire, without the plaintiff's fault, within the time covered by the policies. Neither company ever assented, in writing or print, to the insurance written by the other company. At the close of the plaintiff's testimony the defendants moved for a nonsuit, on the ground that there was a violation of the provision as to other insurance. The motion was denied, subject to exception. The defendants' adjuster was called as a witness by the plaintiff, and testified that he told the plaintiff that he must comply with the terms of the policy. Subject to exception, he was asked by the plaintiff's attorney if at the time of their interviews he had any sympathy for the plaintiff, and he replied: "I did not search my heart for it. I cannot answer your question. I do not know that I had any." One defense was that the plaintiff burned his buildings, and evidence was introduced as to the value of the property. The following question propounded to the plaintiff on cross-examination was excluded, subject to exception: "When you got your tax bill in 1901, did you make any complaint? Was a part of your tax abated?"

Wason & Moran, for plaintiff.

Brown, Jones & Warren, for defendants.

CHASE, J. The defendants are chargeable with the knowledge of the prior insurance communicated to their agent by the plaintiff. Pub. St. c. 170, § 3; Perry v. Insurance Co., 67 N. H. 291, 295, 296, 33 Atl. 731, 68 Am. St Rep. 668, and authorities cited. It must be presumed that when the plaintiff paid the premium he relied upon the policy as a valid contract, such as he had bargained for. The defendants must have so understood when they accepted the plaintiff's money. They also knew that they gave him nothing in return for the money in case the prior policy continued in force until a loss occurred, and they should insist upon the condition which rendered the policy void if there was other insurance without their assent in writing or print Under these circumstances, their character for honorable and fair dealing can be preserved only on the presumption that they overlooked the condition, for the time being, and forgot to express upon the policy their assent to the prior insurance, or that they waived the condition, or held themselves estopped from setting it up. A contrary inference would impute to them the fraudulent act of taking pay for a contract which they knew the other party relied upon as valid, and which they intended to avoid by reason of its invalidity. It is held in many of the states that the insurers waive the condition in their policy, or are estopped to take advantage of it, when the fact which would render the policy void under the condition exists at the inception of the contract, and is known to the insurers. Reed v. Insurance Co., 17 R. I. 785, 24 Atl. 833, 18 L. R. A. 496; Van Schoick v. Insurance Co., 68 N. Y. 434; Gray v. Insurance Co., 155 N. Y. 180, 184, 49 N. E. 675, and authorities cited; Thebaud v. Insurance Co., 155 N. Y. 516, 522, 50 N. E. 284; Morrison v. Insurance Co., 69 Tex. 353, 6 S. W. 605, 5 Am. St. Rep. 63; Havens v. Insurance Co., Ill Ind. 90, 92, 12 N. E. 137, 60 Am. Rep. 689; Insurance Co. v. Barringer, 73 Ill. 230; Garland v. Insurance Co., 9 Ill. App. 571, 582; Insurance Co. v. Hall, 12 Mich. 202; Insurance Co. v. Olmstead, 21 Mich. 246, 253, 254, 4 Am. Rep. 483; Gristock v. Insurance Co., 87 Mich. 428, 49 N. W. 634; Beebe v. Insurance Co., 93 Mich. 514, 53 N. W. 818, 18 L. R. A. 481, 32 Am. St. Rep. 519; Williams v. Insurance Co., 50 Iowa, 561; Bennett v. Insurance Co., 70 Iowa, 600, 31 N. W. 948; Roberts v. Insurance Co., 41 Wis. 321; Anderson v. Assurance Co., 59 Minn. 182, 195, 60 N. W. 1095, 63 N. W. 241, 28 L. R, A. 609, 50 Am. St. Rep. 400; Insurance Co. v. Johnson, 4 Kan. App. 16, 45 Pac. 789; Insurance Co. v. Hammang, 44 Neb. 566, 62 N. W. 883, and numerous authorities therein cited (pages 581-583, 44 Neb., and page 887, 62 N. W.); West v. Society, 10 Utah, 442, 37 Pac. 685; Kruger v. Insurance Co., 72 Cal. 91, 13 Pac. 156, 1 Am. St. Rep. 42; Farnum v. Insurance Co., 83 Cal. 246, 23 Pac. 869, 17 Am. St Rep. 233; Mesterman v. Insurance Co., 5 Wash. St. 524, 32 Pac. 458, 34 Am. St Rep. 877; May, Ins. § 497. In other states the courts have enforced the condition on the ground that parol evidence cannot be received to contradict the written instrument. Batchelder v. Insurance Co., 135 Mass. 449; Thomas v. Assurance Co., 162 Mass. 29, 37 N. E. 672, 44 Am. St. Rep. 323; Dewees v. Insurance Co., 35 N. J. Law, 366; Insurance Co. v. Martin, 40 N. J. Law, 568, 29 Am. Rep. 271; Bennett v. Insurance Co., 55 N. J. Law, 377, 27 Atl. 641. In this state the decided tendency of the decisions, if not their direct purport has been that the insurer is estopped from setting up the fact which conflicts with the terms of the policy, in avoidance of its liability. Marshall v. Insurance Co., 27 N. H. 157; Campbell v. Insurance Co., 37 N. H. 35, 72 Am. Dec. 324; Clark v. Insurance Co., 40 N. H. 333, 77 Am. Dec. 721; Patten v. Insurance Co., 40 N. H. 375; Barnes v. Insurance Co., 45 N. H. 21; De Lancey v. Insurance Co., 52 N. H. 581; Hadley v....