Dickenson v. Commercial Insurance

1 Ant. N.P. Cas. 126

• Court: New York Supreme Court
• Decided: July 1, 1809
• Status: Published

Opinion

Van Ness, J.

The plaintiff ought to have disclosed the fact that such general intelligence was in the city: here, therefore, has been a material concealment, and the contract consequently is void.

(1)

Verdict for the plaintiff, for a return of premium,

Bogardus and Hopkins, for the plaintiff.

Wells, for defendants.

I) Even doubtful rumors, respecting the safety of a ship, which is meant to be insured lost, or not lost, how little credit soever the owner himself may give them, ought to be faithfully disclosed; and the withholding such information will avoid the contract. 1 Marshal, 411. Every fact and circumstance, which can possibly influence the mind of any prudent and intelligent insurer, in determining whether he will underwrite the policy at all, or at what premium he will underwrite, is materia], and ought to be fully and explicitly disclosed. Ib. 467. And it is not merely on the ground of fraud, that concealment avoids the contract: a concealment which is only the effect of accident, negligence, inadvertence or mistake, will, if material, be equally fatal to the contract, as if it were intentional and fraudulent. Ib. 465. There are many matters, however, as to which the insured may be innocently silent; he need not mention what the underwriter knows, and what he ought to know, what he takes upon himself the knowledge of, or what he waives being informed of: he need not be told what lessens the risk, nor of the difficulty of the voyage, the kind of seasons, the probability of hurricanes, &c. Park, 253; vide 1 Phil. Ins. 93; 2 Duer. 550.