Whealton Packing Co. v. Aetna Ins. Co.

• Decision Date: 18 February 1911
• Docket Number: 971.
• Citation: Whealton Packing Co. v. Aetna Ins. Co., 185 F. 108 (4th Cir. 1911)
• Parties: WHEALTON PACKING CO. v. AETNA INS. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

185 F. 108

WHEALTON PACKING CO. v. AETNA INS. CO.

No. 971.

United States Court of Appeals, Fourth Circuit.

February 18, 1911

Alonzo L. Miles(Luther E. Mackall, on the brief), for plaintiff in error.

John F Foley(Foley, Martin & Nelson and Robert H. Smith, on the brief), for defendant in error.

Before PRITCHARD, Circuit Judge, and BRAWLEY and DAYTON, District judges.

PER CURIAM.

While it may be entirely true that some of the courts of this country have gone too far in holding that the breach of an express warranty in an insurance policy, whether material to the risk or not, whether a loss happened through the breach or not, absolutely determines the policy, we are not called upon to either discuss or determine the question in this case.Here the insured warranted that his boat should 'at all times have a competent watchman on board,' and the evidence is undisputed that, while the boat was lying at wharf, the sole watchman aboard went ashore to secure a change of clothing, and while absent the boat caught fire and was consumed.The very fact that his presence at the time was so essentially necessary to put out the fire and prevent the loss clearly demonstrates the insurance company's right to stand upon the express warranty made in the contract that he would be there for that purpose.His absence was certainly not immaterial to the risk, and it is a very reasonable presumption that the loss could have been avoided if he had been there performing his duty.It seems...