Elder v. Federal Insurance

100 N.E. 655, 213 Mass. 389, 1913 Mass. LEXIS 1016

• Court: Massachusetts Supreme Judicial Court
• Decided: January 29, 1913
• Status: Published

Opinion

Braley, J.

The plaintiff as the insured, “warranted . . . that the automobile hereby insured” against loss or damage by fire “shall not be used for carrying passengers for compensation or rented or leased during the term of this policy; and in the event of violation of this warranty this policy shall immediately become null and void.” Having been inserted in the body of the policy the warranty was not dependent upon the negotiations embodied in the application and final issuance of the contract of insurance, and the St. of 1907, c. 576, § 21, is inapplicable. Barker v. Metropolitan Life Ins. Co. 188 Mass. 542. Everson v. General Accident, Fire & Life Assurance Co. 202 Mass. 169. If the automobile was used for the transportation of passengers for hire the plaintiff stipulated that the policy should be void, and the only remaining question is, whether upon the evidence it could be ruled as matter of law that the warranty had been broken. It was agreed by the parties, that with the plaintiff’s knowledge and consent the plaintiff’s son, for compensation which he received and retained, made trips with the automobile for the accommodation of tourists and passengers, and, this use having been permitted by the plaintiff, there was a violation of the warranty at common law, and whether the risk had been increased is immaterial. Barker v. Metropolitan Life Ins. Co. 188 Mass. 542. Kidder v. United Order of the Golden Cross, 192 Mass. 326. The policy therefore was not in force when the automobile was damaged by fire, and the plaintiff cannot recover for the loss.

Nor is he entitled to a return of any part of the premium. The policy attached, and while the premium covered the life of the policy if its terms were complied with by the insured, the plaintiff could not through his voluntary breach deprive the defendant, who is without fault, of the full benefit of the contract. Taylor v. Lowell, 3 Mass. 330. Merchants’ Ins. Co. v. Clapp, 11 Pick. 56.

Judgment for the defendant on the verdict.