Hinman, J.
This was an action on a policy of insurance against fire, in which the plaintiff recovered, and the defendants now move for a new trial, on the ground of errors in the rulings and charge of the court, and also on the ground that the verdict is against the weight of evidence in the case.
The first point of law relates to the charge in respect to the agency of Lay. Lay was the local agent of the defendants at Lyme, for the purpose of receiving applications for insurance, and for other purposes, and he testified that the officers of the company had told him that he must consider himself more the agent of the insured than of the company, and as it was an important inquiry in the case, whether the company was fairly apprised of certain facts material to the risk, the defendants requested the court to charge the jury that if the plaintiff did communicate those facts to Lay, yet if he neglected to communicate them to the officers of the company, and the policy was issued by those officers without a knowledge of them, then the policy ought to be deemed void. This claim was very properly rejected; and the jury were told that if Lay was the agent of the company, any neglect on his part was not chargeable to the plaintiff, unless he was also his agent. Of course the company could not make their agent also the agent of the insured, unless the insured chose to recognize him as his agent; and however desirous the defendants may have been that their agent should conduct fairly with applicants for insurance, most applicants, probably, would prefer for their own agent, some one not connected with the company. [63]*63We have no reason to doubt that it was the object of the-company that Lay should conduct fairly and honorably towards all applicants for insurance; and for the purpose of impressing this duty upon him, it was very proper for the president of the company to say to him that he must consider himself the agent of the insured as well as the agent of the company. But to attempt to dignify a caution of this sort into a real agency for the insured, is wholly unjustifiable both in law and fact, and is rather calculated to c'hange the honorable character of the caution into a snare for the unsuspecting.
Again, the charge is claimed to be erroneous in respect to the disclosure to the agent, of certain unusual circumstances material to the risk. Several fires had occurred in an unusual manner, in the plaintiff’s house, just previous to the application for insurance, and it was claimed that, in disclosing this circumstance to the agent, the plaintiff did not go sufficiently into detail, and did not, therefore, give a full and fair disclosure. ‘
Undoubtedly, the insurer is understood to take the risk upon the supposition that nothing material exists that is not fully disclosed. And the fact that his buildings had been on fire a number of times shortly before the insurance was effected, was certainly a very material circumstance, which, if not disclosed, would have rendered the policy void. Such an unusual occurrence tended to a suspicion that incendiaries had attempted and might again attempt to fire his buildings; and this concealment — and silence on such a subject would amount to concealment — would operate as a fraud upon the insurer and render the policy void. Pars. Mer. Law, 524. Curry v. Commonwealth Ins. Co., 10 Pick., 535. Clark v. Manufacturers’ Ins. Co., 8 How. U. S., 235.
We have no intention of relaxing, in the least, the rule which requires of the insured the most unreserved frankness on such a subject as this. But we think the charge required this of the plaintiff in this case. The insured is not bound to force his knowledge upon the insurer. In many cases he could not do it if he tried. “ He need not,” says lord Mans[64]*64field, “mention what the underwriter ought to know; what he takes on himself the knowledge of; or what he waives being informed of.” Carter v. Boehm, 3 Burr., 1905.
Now it is apparent from the evidence, that the alarm of Bebee on account of these fires, was well understood by the agent. When he first applied for insurance, he told the agent that he had had some fires in his wood-house and house, and wanted his buildings insured, and when told that he must first bring the dimensions of his buildings, he replied that he would come the next day. The agent answered immediately, “you ’ll come while the fire is hot.” And when he did come with the dimensions, prepared to effect the insurance, he again told the agent he had had fires in his wood-house and house ; that the first fire was discovered in a barrel of shavings in the wood-house; and how it was put out. The agent interrupted him to ask where the fire was in the main part of the house, and he told him in the bed, in the west front chamber. And when asked how much the bed was damaged, he told him it was about spoiled. Then the agent inquired if he had any enemy, or any suspicion of any one, and he told him he could not tell him anything about it, only that these fires had occurred, he could not tell how ; it was all a mystery. To this the agent replied, that he had frequently been afraid his house would get burned, for fires frequently occurred and no one could tell how they occurred. Then they had a conversation about slow matches, and as to who had been at the house, and whether any one had been there that the plaintiff suspected of setting fire to the premises.
Now as applicable to these facts, the jury were instructed that any suppression of material facts, though by mistake and without actual fraud, would vitiate the policy, whether the result of stupidity, mistake, or inadvertence; because it operates as a fraud upon the insurer. But that the insured was not bound to go into details as minutely as on the witness stand, but is bound to state fairly the substantial facts material to the risk. And in commenting on the facts, the court told the jury, that much, in respect to details which [65]*65ought to be communicated, would depend on the conduct of the insurer; that a party could not be expected to go into details about which the insurer manifested no interest, and made no inquiry; and in another part of the charge it is intimated that it was sufficient to disclose such facts as would occur to an honest man of ordinary intelligence, as being material to the risk, though he may omit to go into all the details.
On a point quite analogous to this, lord Mansfield remarked, that the underwriter, knowing the governor to be acquainted' with the state of the place; knowing that he apprehended danger, and must have some ground for his apprehension ; being told nothing of either, signed this policy without asking a question. By so doing he took the knowledge of the state of the place upon himself. With some slight variations to adapt this language to the circumstances of the case under consideration, it seems almost as applicable to it as to the case of Carter v. Boehm. The material difference in the two cases is that instead of being told nothing, the agent here was told all which occurred to the plaintiff as material to the risk, and he only omitted to go into a full detail of all the circumstances, because the agent not only expressed no desire for more full information, but by his questions to the plaintiff, turned his attention from the subject to the point whether he suspected any one, and if so, whom, as having caused the fires.
Free access — add to your briefcase to read the full text and ask questions with AI
Hinman, J.
This was an action on a policy of insurance against fire, in which the plaintiff recovered, and the defendants now move for a new trial, on the ground of errors in the rulings and charge of the court, and also on the ground that the verdict is against the weight of evidence in the case.
The first point of law relates to the charge in respect to the agency of Lay. Lay was the local agent of the defendants at Lyme, for the purpose of receiving applications for insurance, and for other purposes, and he testified that the officers of the company had told him that he must consider himself more the agent of the insured than of the company, and as it was an important inquiry in the case, whether the company was fairly apprised of certain facts material to the risk, the defendants requested the court to charge the jury that if the plaintiff did communicate those facts to Lay, yet if he neglected to communicate them to the officers of the company, and the policy was issued by those officers without a knowledge of them, then the policy ought to be deemed void. This claim was very properly rejected; and the jury were told that if Lay was the agent of the company, any neglect on his part was not chargeable to the plaintiff, unless he was also his agent. Of course the company could not make their agent also the agent of the insured, unless the insured chose to recognize him as his agent; and however desirous the defendants may have been that their agent should conduct fairly with applicants for insurance, most applicants, probably, would prefer for their own agent, some one not connected with the company. [63]*63We have no reason to doubt that it was the object of the-company that Lay should conduct fairly and honorably towards all applicants for insurance; and for the purpose of impressing this duty upon him, it was very proper for the president of the company to say to him that he must consider himself the agent of the insured as well as the agent of the company. But to attempt to dignify a caution of this sort into a real agency for the insured, is wholly unjustifiable both in law and fact, and is rather calculated to c'hange the honorable character of the caution into a snare for the unsuspecting.
Again, the charge is claimed to be erroneous in respect to the disclosure to the agent, of certain unusual circumstances material to the risk. Several fires had occurred in an unusual manner, in the plaintiff’s house, just previous to the application for insurance, and it was claimed that, in disclosing this circumstance to the agent, the plaintiff did not go sufficiently into detail, and did not, therefore, give a full and fair disclosure. ‘
Undoubtedly, the insurer is understood to take the risk upon the supposition that nothing material exists that is not fully disclosed. And the fact that his buildings had been on fire a number of times shortly before the insurance was effected, was certainly a very material circumstance, which, if not disclosed, would have rendered the policy void. Such an unusual occurrence tended to a suspicion that incendiaries had attempted and might again attempt to fire his buildings; and this concealment — and silence on such a subject would amount to concealment — would operate as a fraud upon the insurer and render the policy void. Pars. Mer. Law, 524. Curry v. Commonwealth Ins. Co., 10 Pick., 535. Clark v. Manufacturers’ Ins. Co., 8 How. U. S., 235.
We have no intention of relaxing, in the least, the rule which requires of the insured the most unreserved frankness on such a subject as this. But we think the charge required this of the plaintiff in this case. The insured is not bound to force his knowledge upon the insurer. In many cases he could not do it if he tried. “ He need not,” says lord Mans[64]*64field, “mention what the underwriter ought to know; what he takes on himself the knowledge of; or what he waives being informed of.” Carter v. Boehm, 3 Burr., 1905.
Now it is apparent from the evidence, that the alarm of Bebee on account of these fires, was well understood by the agent. When he first applied for insurance, he told the agent that he had had some fires in his wood-house and house, and wanted his buildings insured, and when told that he must first bring the dimensions of his buildings, he replied that he would come the next day. The agent answered immediately, “you ’ll come while the fire is hot.” And when he did come with the dimensions, prepared to effect the insurance, he again told the agent he had had fires in his wood-house and house ; that the first fire was discovered in a barrel of shavings in the wood-house; and how it was put out. The agent interrupted him to ask where the fire was in the main part of the house, and he told him in the bed, in the west front chamber. And when asked how much the bed was damaged, he told him it was about spoiled. Then the agent inquired if he had any enemy, or any suspicion of any one, and he told him he could not tell him anything about it, only that these fires had occurred, he could not tell how ; it was all a mystery. To this the agent replied, that he had frequently been afraid his house would get burned, for fires frequently occurred and no one could tell how they occurred. Then they had a conversation about slow matches, and as to who had been at the house, and whether any one had been there that the plaintiff suspected of setting fire to the premises.
Now as applicable to these facts, the jury were instructed that any suppression of material facts, though by mistake and without actual fraud, would vitiate the policy, whether the result of stupidity, mistake, or inadvertence; because it operates as a fraud upon the insurer. But that the insured was not bound to go into details as minutely as on the witness stand, but is bound to state fairly the substantial facts material to the risk. And in commenting on the facts, the court told the jury, that much, in respect to details which [65]*65ought to be communicated, would depend on the conduct of the insurer; that a party could not be expected to go into details about which the insurer manifested no interest, and made no inquiry; and in another part of the charge it is intimated that it was sufficient to disclose such facts as would occur to an honest man of ordinary intelligence, as being material to the risk, though he may omit to go into all the details.
On a point quite analogous to this, lord Mansfield remarked, that the underwriter, knowing the governor to be acquainted' with the state of the place; knowing that he apprehended danger, and must have some ground for his apprehension ; being told nothing of either, signed this policy without asking a question. By so doing he took the knowledge of the state of the place upon himself. With some slight variations to adapt this language to the circumstances of the case under consideration, it seems almost as applicable to it as to the case of Carter v. Boehm. The material difference in the two cases is that instead of being told nothing, the agent here was told all which occurred to the plaintiff as material to the risk, and he only omitted to go into a full detail of all the circumstances, because the agent not only expressed no desire for more full information, but by his questions to the plaintiff, turned his attention from the subject to the point whether he suspected any one, and if so, whom, as having caused the fires. Is it not correct, then to say, on such a question, that, in respect to details, much must depend on the conduct of the insurer ? And if the plaintiff, under the circumstances, disclosed all that occurred to him, and all that would be likely to occur to an honest man of ordinary intelligence, is it not enough ?
It may be that the agent did not suppose there was so much occasion for alarm as Bebee appe.ared to feel. But so long as he did not obtain this erroneous impression by means of anything done by Bebee to mislead him, the consequences of his error cannot be charged to the plaintiff.
On the motion for a new trial, on the ground that the ver[66]*66diet is against the weight of the evidence, but little need be said. Indeed much that has been already said, is perhaps, as applicable to this part of the case, as to the question of law arising under the charge. It is true, the precise number of fires that had occurred on the premises was not stated to the agent; but this seems to have been rather the result of the agent's want of interest in the matter, and of his neglect to make inquiry, than of any fault on the part of Bebee. And taking the whole evidence together, we think there is no reason to believe there was any intentional concealment on his part.
We will only say, therefore, that, considering the well known reluctance of the court to interfere with the verdicts of juries on questions of fact, we are not satisfied that there is even a plausible ground for such interference in the present case.
We do not, therefore, advise a new trial on any ground.
In this opinion the other judges, Ellsworth and Storrs, concurred.
New trial not granted.