Noone v. Transatlantic Fire Insurance
Before: Belcher
Synopsis
Dire Insurance — Representation in Policy—Distance prom Other Buildings — Warranty, •—In an insurance policy which concludes with a covenant or agreement that the statements therein contained are true, “ so far as known to the applicant, ” a statement to the effect that the building insured was ninety feet from other buildings does not amount to a warranty that it is so situated.
Id. — Construction of Policy—Truth of Statements—Conditions Precedent. —An insurance policy containing contradictory provisions, or so framed as to leave room for construction rendering it doubtful whether the parties intended the exact truth of the applicant’s statements to be a condition precedent to any binding contract, should be construed so as not to impose an obligation of a warranty upon the assured.
Id.—Instruction as to Warranty — Materiality of Representation — Question of Law — Error without Injury.—If the provisions of the policy and the application, taken together, amount to a warranty as to the exact truth of a representation contained in the policy, it is erroneous to instruct the jury that it is for them to determine whether the misrepresentation was or was not material; but if the truth of the representation is not warranted, the error is immaterial.
Id. — Certificate of' Notary — Employment by Company — Notice of Reasons for Change of Notary. —Under a provision of a fire insurance policy requiring that in case of loss by fire the assured must obtain the certificate of the notary nearest the insured building, not concerned in the loss as a creditor or otherwise, nor related to the assured, as to the justice of the claim, where it appears that the nearest notary had refused to act, on the ground that he was employed by the insurance company, in ascertaining the facts and taking affidavits concerning the fire, the assured is relieved of the necessity of obtaining his certificate, and need not inform the company of the reason for obtaining the certificate of another notary.
Belcher, C. This was an action upon a policy of insurance. The plaintiff had a verdict and judgment for $3,717.50, and the defendant appeals from such judgment, and from an order denying its motion for new trial.
The grounds which are relied upon for a reversal are the following: —
1. It is ¿rgued that there was a breach of warranty in [155]relation to the distance of neighboring buildings from that which was covered by the insurance.
The policy contained the following provisions: “4. The application and survey upon which the issuance of a policy is predicated shall be considered a part of it, and a warranty by the assured. If the assured, by a written or verbal application for insurance, or by survey, plan, or description, or otherwise, makes any erroneous representations, or omits to make known any fact material to the risk, .... then, and in every such case, this policy shall be void.”
The application upon which the policy was issued stated that the building insured was ninety feet from other buildings, but after answering thevarious questions, contained the following: “ And the applicant hereby covenants that the foregoing is a just, full, and true exposition of all the facts and circumstances in regard to the condition, situation, value, and risk of the property to be insured, so far as the same are known to the applicant and material to the risk.”
The evidence showed very clearly that the building insured was not ninety feet from other buildings, but was somewhat under eighty feet therefrom. And in relation to this the judge instructed the jury as follows: “The defendant in this action seeks to avoid its liability under this policy upon the ground, among others, that in the application originally made the applicant stated that the building nearest to the one destroyed was ninety feet away, whereas defendant now claims that it was but seventy-two feet distant, and that there was another building only seventy-four feet away. It is for you to determine from the evidence whether the distance was or was not ninety feet. If you find it was not, it is for you to determine whether such misrepresentation was or was not material, and upon this point you must consider all the evidence relating to the materiality of the statement. If you find that the nearest building was [156]
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