Imágenes de páginas
PDF
EPUB

Gerhauser v. North British and Mercantile Insurance Company.

[ocr errors]

66

nent to the testimony and was calculated to mislead the jury, it appearing from the testimony that the plaintiff was perfectly familiar with the condition of the property, and that the defendant knew and could know nothing about it, except as informed by the plaintiff.” Instruction “ B,” which was objected to on the same grounds, was to the effect that, if plaintiff failed to disclose the condition of the building, but defendant knew its condition, such failure worked no forfeiture. Instruction “A” is certainly obnoxious to criticism ; but we do not think the action of the court below in overruling the specific exceptions taken constituted such technical error as to warrant a reversal of the judgment. In Axtel v. Caldwell, 24 Penn. 90, the instruction was, that a refusal to deliver certain property would dispense with a demand; and the plaintiff in error contended that, in the absence of evidence to show a refusal, it was an error fatal to the judgment to speak of a refusal at all in charging the jury. It was held that the instruction was a true expression of the law in the abstract--that when jurors are told that a given question is to be determined by them, this is called submitting the fact to the jury; and if the record show that there was no evidence, direct or presumptive, of the existence of such fact, such submission is error ; because it is tantamount to a charge that there is some evidence of the fact. That the instruction did not submit the question of refusal to the jury, but simply stated a legal principle which had nothing to do with the case. ment was therefore affirmed.

Here, the portions of the instruction excepted to substantially assert that the mere failure to disclose material facts, known to the insurers or unknown to the insured, would not prevent a recovery. This is correct as an abstract proposition. It was pertinent to the testimony, so far as it referred to the knowledge of the defendant, and it did not submit the question of the knowledge of the plaintiff to the jury. Further, we are satisfied the jury could not have been misled by the portions of the instruction especially excepted to. They were afterward specifically and correctly instructed on the hypothesis of a concealment of any material fact. 3 Gr. & Waterman, Chap. X, 792–800. The questions raised by the assignments of error in giving the instructions marked “D,” “C”

The judg

[ocr errors]

Gerhanser v. North British and Mercantile Insurance Company.

[ocr errors]

a

and “E,” have already been considered. Instruction “J” was properly refused, as taking from the jury the question, whether defendant waived the statement required by subdivision eleven.

There was no error in refusing to give instruction “K.” It was to the effect that if the plaintiff, in procuring the policies, represented the building as a “ brick building" in good order and repair, and if one-fourth or more of the rear wall was composed entirely of wood unprotected by brick, then the building was not according to the true meaning of the term a “ brick building," and the jury must find for defendant. The question whether the representations made by the insured are materially untrue, or untrue in some particular material to the risk, is a question of fact for the jury. Besides, there was no evidence that the plaintiff at the time of applying for these policies represented the building as

“ brick building.” The instruction was so framed that it might lead the jury to believe that they must find the plaintiff guilty of a fatal and material misrepresentation, even if he informed defendant of the change in the south wall.

Instruction “L,” requested by the defendant and refused by the court, is more objectionable in this respect than instruction “ K.” It reads: "L.” “ If the agents of defendant knew, prior to the issuance of the policies sued on, that the brick wall, to the extent of the south half of the rear wall of said building, had been removed, and a wood wall had been substituted therefor, and they had not seen the building for some time prior thereto, and the jury believe from the evidence that, at the time of procuring said policies, the plaintiff told the agent of defendant from whom he procured them, that he had put said building in perfect repair, then they must find for defendant, it being admitted that said wall remained in that condition at the time of the fire.” This was properly rejected, as liable to mislead the jury to the conclusion that they could not find from the whole conversation, as probably intended and understood by the parties, that Harvey was sufficiently informed of the true condition of the property—as excluding from the consideration of the jury the plaintiff's testimony that he told Harvey of the change in the south wall. 21 Md. 551; 27 Mo. 70; 20 Ill. 395.

66

66

[ocr errors]

Gerhauser v. North British and Mercantile Insurance Company.

Defendant requested the instruction marked “M,” viz: “If none of the defendant's agents, nor any person acting for defendant, had seen tạe building *** for several years prior to issuing the policies, and in issúng them defendant's agent relied entirely upon the plaintiff's representations as to the condition and state of repair of said building, and the jury believe the plaintiff then misrepresented the condition and state of repair of said building, in matters material to the risk, they must find for defendant, even though they believe that plaintiff made such misrepresentations by mistake instead of design.The instruction as offered was refused, but was modified by striking out the words italicized, and was given as modified. The defendant “excepted to the refusal to give said instruction as offered by defendant, and to modification of the same by the court.” It is not the right of counsel to require the court to repeat and reiterate the same proposition. It is sufficient if the whole series of instructions, when read in connection, correctly express the law as requested. Reading this instruction as modified, in connection with the instruction marked “14,” and given at the request of defendant, it will be seen that the jury were instructed substantially, if not literally, as requested. They were told by instruction “14” that false representations concerning the state of repair of a building, in matters material to the risk, made by the plaintiff and relied on by the defendant, are as fatal to the right of recovery when made by mistake as when made by design; and the only misrepresentation which the evidence tended to prove, was one concerning the state of repair of the house. The modification was made by passing through the words rejected one stroke of the pen, leaving them still legible, and in that condition it was handed to the jury. If it was feared that this might mislead the jury, the attention of the court should have been called to the fact, and a specific exception taken in case of refusal to allow the instruction to be rewritten or the rejected words to be obliterated.

The defendant requested the court to instruct as follows: “N.” “ If the jury believe from the evidence that plaintiff in 1867 substituted timber and cloth for eight inches of brick wall on the south and inside of his building, embracing a space of fifteen feet or more

Gerhauser v. North British and Mercantile Insurance Company.

This was

in length and extending from floor to ceiling; and that he concealed the fact from defendant, either by design, accident, intentional neglect or mistake, and the defendant's officers issued the policy sued on in ignorance of such change in the wall, then they must find for defendant, because such change was material to the risk and ought to have been brought to the knowledge of defendant, some officer or agent of defendant, before the issuance of the policies.modified by striking out the last thirty-one words, and by inserting after the word “ ceiling” the words “and that the said condition of the building was material to the risk.” The error assigned is that the court erred in refusing to instruct that the change in the south wall was material, and in leaving it to the jury to find whether the condition of the building resulting from the change was material. The questions raised by this assignment are not free from difficulty, but we think the ruling is sustained by principle and by the weight of authority. 18 N. Y. 170; 39 N. Y. 59; 6 Jones, (Law) 352; 40 N. H. 381 ; 20 N. H. 557 ; 18 Ind. 361; 2 Parson's Contr. 770. It is not contended that the answer here relied on was a warranty, nor is it denied that, as a general rule, the materiality of a representation is a question of fact to be submitted to and decided by the jury; but it is contended that the plaintiff, in answer to a specific question, represented the building to be in good repair: that the instruction was framed on the hypothesis that the change in the south wall was made and concealed ; that the truth of this hypothesis is inconsistent with the truth of the representation, and that, under the circumstances, the materiality of the representation and of the variance between the representation and the fact was a question for the court and not for the jury, because the parties had made the representation material by asking the question to which it was an answer, and by inserting in the condition indorsed on the policy a provision that it should be vitiated by any misstatement as to the construction of the building or the materials composing it; and because there could be no dispute on the evidence whether the change in the wall increased the risk; that the court should have assumed that it would be thereby increased, wood being necessarily more combustible than brick and mortar.

Gerbauser v. North British and Mercantile Insurance Company.

It is undoubtedly competent for the parties to decide for themselves and beforehand what facts or representations shall be deemed material, and where they have so agreed, the agreement precludes all inquiry upon the subject. This they may do by converting the representation into a warranty, or they can, by the form of the contract, stipulate as to its materiality without, however, putting it in other respects on the same footing as a warranty. Here they have not seen fit to make the answer a warranty, which could only be by making it in legal effect a part of the policy.

A warranty — like a covenant, fixing and liquidating the quantum of damage — will not be created nor extended by construction or implication. For like reasons, the intention of the parties to conclude by convention the question of the materiality of the answer or representation should be clearly manifested; and in case of doubt, the doubt is to be resolved in favor of the insured. So far as this contract has been reduced to writing, the intention to make the answer material depends solely upon the construction of the proviso concerning misstatements; and this, according to established rules, is either inoperative, as the expression of what is tacitly implied, (98 Mass. 393-4; 12 Cush. 425) or it operates to exclude things which, but for this expression, would have been implied. Had the parties here, as in some of the cases cited, by their contract stipulated for the materiality of this answer— had it been written out, and referred to in the proviso — then, the interpretation of all writings being for the court, the question of the materiality of the answer could not have been left to the jury. But the contract here, by legal intendment, is, that the policy should be vitiated by any material misrepresentation. Ordinarily, in the absence of fraud and mistake, written contracts cannot be controlled by antecedent or contemporaneous statements, not embraced in the writing; but in actions on policies of insurance, a recovery may be prevented by proof of verbal representations, which, though undesigned, were material to the risk. In such case, the burden of proof is on the defendant, to show that the plaintiff made the representation, that it was material, and that it was untrue in substantial and material particulars. Cases are cited to show that when the defendant proves that a question is asked by the insurer and an

« AnteriorContinuar »