Luce v. Dorchester Mutual Fire Insurance

105 Mass. 297

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1870
• Status: Published

Opinion

GRAY, J.

The building insured has been totally destroyed by fire. The policy states that the amount insured is not more than three fourths of the value of the property, as stated by the applicant. The amount insured is $400, and the value stated by the applicant is $800. The valuation thus agreed on by the parties is conclusive, in the absence of fraud. Borden v. Hingham Insurance Co. 18 Pick. 523. Fuller v. Boston Insurance Co. 4 Met. 206. Phillips v. Merrimack Insurance Co. 10 Cush. 350. Phœnix Insurance Co. v. McLoon, 100 Mass. 475. The restriction, in the subsequent proviso, to three fourths of the actual value of the property at the time of the loss, applies only to the whole amount of insurance when there is an additional policy upon the property. The case is thus distinguished from that of Brown v. Quincy Insurance Co. post, 396. The covenant in the application, that the estimated valuation shall not be conclusive upon the company, is not embodied or stated in the policy, and cannot therefore be deemed a part of the contract. St. 1864, c. 196. Eastern Railroad Co. v. Relief Insurance Co. 98 Mass. 420.

The removal of the tenants from the building and leaving it unoccupied did not avoid the policy, if the risk was not thereby increased. But by the express terms of the policy, any increase of the risk by the act or with the knowledge or consent of the assured, whether by altering or enlarging the building, by appropriating it to any other purpose than that mentioned in the policy, or in any other manner, avoided the policy; and the question whether voluntarily permitting the building to remain unoccupied for more than a year increased the risk was a question for the jury. Gamwell v. Merchants’ & Farmers’ Insurance Co. 12 Cush. 167. Blood v. Howard Insurance Co. Ib. 472. Allen v. Massasoit Insurance Co. 99 Mass. 160. Lyman v. State Insurance Co. 14 Allen, 329.

The direct question whether such a change in the occupation of a dwelling-house increased its liability to be destroyed or injured by fire was a subject within common knowledge, and upon which opinions of witnesses were inadmissible. Mulry v. Mohawk Valley Insurance Co. 5 Gray, 541. Lyman v. State Insurance Co. 14 Allen, 329. Hartford Protection Insurance Co. v. Harmer, 2 Ohio State, 452. The testimony of experts that leaving a dwelling-house unoccupied for a considerable length of time was an increase of risk was therefore rightly rejected.

But whether such a change in the occupation is material to the risk might also be tested by the question whether underwriters generally would charge a higher premium. Merriam v. Middlesex Insurance Co. 21 Pick. 162. That being a matter within the peculiar knowledge of persons versed in the business of insurance, testimony of such persons upon that point is admissible. Webber v. Eastern Railroad Co. 2 Met. 147. Mulry v. Mohawk Valley Insurance Co. 5 Gray, 541, 545. Story, J., in McLanahan v. Universal Insurance Co. 1 Pet. 170, 188. Hawes v. New England Insurance Co. 2 Curtis C. C. 229. The testimony of the defendants agent that it was their custom to charge extra premiums upon such unoccupied dwelling-houses was indeed inadmissible, because it went no further- than to prove a particular custom of the defendants, not shown to have been known to the plaintiff. Carter v. Boehm, 3 Burr. 1905. Hartford Protection Insurance Co. v. Harmer, 2 Ohio State, 452. Adams v. Otterback, 15 How. 539. Berkshire Woollen Co. v. Proctor, 7 Cush. 417. But the testimony of witnesses, having the requisite knowledge and experience, that it was the custom of insurance companies generally to charge extra premiums upon dwelling-houses intended or known to be unoccupied, was competent; and such evidence having been offered and rejected, the Exceptions must be sustained.