Whipple v. the U.S. Fire Insurance Co.

Supreme Court of Rhode Island

Whipple v. the U.S. Fire Insurance Co.

38 A. 498, 20 R.I. 260, 1897 R.I. LEXIS 102

CourtSupreme Court of Rhode Island

DecidedOctober 16, 1897

StatusPublished

Cited by4 cases

This text of 38 A. 498 (Whipple v. the U.S. Fire Insurance Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Whipple v. the U.S. Fire Insurance Co., 38 A. 498, 20 R.I. 260, 1897 R.I. LEXIS 102 (R.I. 1897).

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Opinion

Matteson, C. J.

The defendant criticises the declaration because the plaintiffs have not averred and negatived the several provisions contained in the policy which are in the nature of conditions subsequent, the existence of the facts *261 creating which would avoid the policy., All that is necessary, however, for a plaintiff to do in declaring on a contract of insurance is to set forth so much of it as will show a right to recover. 2 May Ins. § 589 ; 2 Greenl. Ev. 13 ed. § 376. hence it follows that the various limitations, conditions and stipulations of a policy which are in the nature of conditions subsequent, and go to defeat the liability of the insurer, are matters of defence, and have no place in the declaration. Lounsbury v. Protection Insurance Co., 8 Conn. 459.

J. Jerome Hahn, for plaintiff. John T. Blodgett, for defendant.

The objection is also taken that it appears by the policy that it was a condition of it that the insured, or their legal representatives, should pay, in addition to the cash premium, such sums as might be assessed by the directors of the defendant, pursuant to the laws of the State, but not to exceed three times the amount of the cash premium, and that it does not appear in the declaration that such agreement was made by the plaintiffs. The agreement, however, being-made a part of the consideration for the policy, and a condition of it, the acceptance of the policy was tantamount to such an agreement; and, moreover, the declaration avers that the plaintiffs have in all things kept, fulfilled and performed all conditions and things on their part to be kept, fulfilled and performed, to entitle them to recover on the contract. Tripp & Bailey v. Vermont Life Insurance Co., 55 Vt. 100.

Demurrer overruled, and case remitted to the Common Pleas Division for further proceedings.

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Matteson, C. J.

The defendant criticises the declaration because the plaintiffs have not averred and negatived the several provisions contained in the policy which are in the nature of conditions subsequent, the existence of the facts *261 creating which would avoid the policy., All that is necessary, however, for a plaintiff to do in declaring on a contract of insurance is to set forth so much of it as will show a right to recover. 2 May Ins. § 589 ; 2 Greenl. Ev. 13 ed. § 376. hence it follows that the various limitations, conditions and stipulations of a policy which are in the nature of conditions subsequent, and go to defeat the liability of the insurer, are matters of defence, and have no place in the declaration. Lounsbury v. Protection Insurance Co., 8 Conn. 459.

J. Jerome Hahn, for plaintiff. John T. Blodgett, for defendant.

The objection is also taken that it appears by the policy that it was a condition of it that the insured, or their legal representatives, should pay, in addition to the cash premium, such sums as might be assessed by the directors of the defendant, pursuant to the laws of the State, but not to exceed three times the amount of the cash premium, and that it does not appear in the declaration that such agreement was made by the plaintiffs. The agreement, however, being-made a part of the consideration for the policy, and a condition of it, the acceptance of the policy was tantamount to such an agreement; and, moreover, the declaration avers that the plaintiffs have in all things kept, fulfilled and performed all conditions and things on their part to be kept, fulfilled and performed, to entitle them to recover on the contract. Tripp & Bailey v. Vermont Life Insurance Co., 55 Vt. 100.

Demurrer overruled, and case remitted to the Common Pleas Division for further proceedings.

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Bluebook (online)

38 A. 498, 20 R.I. 260, 1897 R.I. LEXIS 102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whipple-v-the-us-fire-insurance-co-ri-1897.

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