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1 Law & Bank Bull. 1 (1857-1858)

handle is hein.journals/weelgaz1 and id is 1 raw text is: PUBLISHED BY W. W. WARDEN. VOL. 1. CINCINNATI, SATURDAY, JULY 11, 1857. NO. 1 THE WEEKLY LAW BULLETIN is published every Saturday, at the office of the DAILY CounT BULLETIN. in fBank Buildings, north-west corner of Main and Third streets, (west entrance,) at the following rates: T'o a single subscriber, for one year, - - 63,00 To asingle subscriber, for three months, $1,00 To Clubs of five, or more subscribers, at the rate of $2,50 per year. The payments for subscription to be iaeraiably in edpance. Address W. W. WARDEN, Cincinnati. SUPERIOR COURT OF CINCINNATI, Special Term, June, 1857. Liabilities of -Mutual Insurance Companies to their Members--When a Policy will be Reformed for Mistake, and what Proof will be Required, John Elstner vs. Cincinnati Equitable Insurance Company. STORER J.: The Jury to whom the questions of fact were referred, have returned a gen- eral verdict for the plaintiff, and found substantially in the affirmative, upon the question specially submitted to them by the Court. The plaintiff asks for judgment, and defendants move for a new trial. Two questions were prese-tcd, nd very naturally arose upon the plead- ings, there being two causes of action stated in the petition; one upon a pol- idy of insurance, seeking to recover for an alleged loss by fire; the other, in the nature of a bill to reform the pol- iy, on the ground that the real con- tract between the parties is not stated in that instrument. The policy was issued on the 13th Aggust, 1853, and insured the plaintiff from loss by fire upon that certain five-story brick warehouse, situate on thp north-west corner of Vine and CQpnmerce streets, 21 6-12 front, by 90 feet in depth; also the adjoining five- story brick warehouse, on the north, being the same width and depth as the first building, each insured in the sum of $2,800. For a particular description, or survey, the policy referred to Applica- tion Book No. 2, p. 11. The survey alluded to was in the following words, which is proved to have been made by the authorized agent of the defendants, wh ose special duty it was to attend to Mallpplications for insurance: Aug. 13, 1853.-John Elstner, a five- story brick warehouse, situate on the north-west corner of Vine st, and Cherry alley, 21 6-12 feet front, and 93 feet deep, 214 feet of cornice, 26 twelve- light windows 10 by 18, 3 pair of fold- ing doors sash and shutters, 4 hatch- ways, 4 Aights rough steps; room on enId floor; valued at $4,400; premium, it per cent. Also, adjoining, on the north, a five-story brick warehouse, same wisth, depth, and same finish as the fist; valued at $4,000; premium 1 f per sent (CQ the return of this survey, the policy was made out, and delivered to the plaintiff; who paid the premium. The risk was to be continued for seven years; and it is in evidence the insu- rance was made at the lowest rates for warehouses, being one-quarter per cent. per annum. After the insurance was made, the plaintiffs tenant, to whom the last de- scribed building in the survey, as well as the policy, had been rented, took possession, erected furnaces, by which lie carried on the manufacture of candy in the cellar, second and third stories, using fire heat in all. While the building was thus used it was consumed by fire. The plaintiff presented his claim for the loss, which was resisted by the de- fendants, on the ground that a candy manufactory, which required the use of fire heat, was not insured by the policy. It was further objected that, by the deed of settlement, which binds all who are insured in the Company, and which is made part of the contract of insu- rance, by the policy, in express terms, it is stipulated in the 10th article, among other things, that no policy shall be so constructed as to extend to any house or shop where any tiade or business is carried on that requires the use of fire heat, unless the same be mentioned in the policy, and a propor- tionable deposit paid, to be agreed on with the Directors. By the act of incorporation, every in- surer becomes a member of the Compa- pany, and is subject to all restrictions imposed by the deed of settlement, and entitled to all the privileges it imparts. The question then arists does the policy, by a fair construction of its lan- guage, cover the building thus used and appropriated? We lay out of the case, in this view of the plaintiff's claim, the evidence adduced on trial as to the knowledge of the defendants, of the purpose to which the building was applied, and confine ourselves to the consideration of the contract, as it is written. and accepted by the parties. We suppose the property, as described in the policy, is a representation that it will continue to retain that character, in all essential particulars, until the risk terminates, unless the parties stip- ulate to the contrary. This rule is adopted to secure the underwriter from all perils he could not be supposed to have contemplated when he subscribed the policy, as well as to hold the in- sured to perfect good faith on his part. Thus it is said, in Stetson vs. The Mass. M. F. Ins. Co., 4 Mass. 330, that where the extent and nature of the risk de- pends upon the continuance of the premises in the condition in which they were represented, they can not be al- tered, to-the detriment of the insurer, without invaliditing the insurance. It is not, as remarked by Lord Eldon, in the Newcastle Fire Ins. Co. vs. Macnamara & Co., 3 Dow. P. C. 255, whether the risk was greater in one building than another-the question for the underwriter is, what is the building, defaco, that I have insured? So in 3 Conn. 370, Vall vs. E. River Ins. Co., it was held that the words occw pied as a store house, must be construed as a warranty, and, as such, they could only be satisfied by proof of an exclu- sive occupation. This case was afterward on trial in the Superior Court of New York, and it was attempted to prove, by parol, that the use of the building insured was, by custom, consistent with the ordinary meaning of the language of the policy; but the application was de- nied, the Court deciding that where a contract contained a warranty that the building was occupied exclusively as a store-house, the evidences rejected would not tend to prove a compliance with the warranty, while it could not be denied that one-half of it was occupied exclu- sively for other purposes (3 Doer. 273). There certainly is no difference in pritciple between the case last cited and the present. Here a warehouse is insured only; there a storc-house. The meaning of both is the same-the terms are equivalent. The insured, by accepting the policy, agrees that his property shall, for the future, conform to the description it contains; and the underwriter takes the risk upon the understanding that the subject will not be changed from its original character. No temnporary or accidental use of the premises for a purpose not strictly within the ordinary acceptation of the terms used, would effect the contract. They are but the exceptions to the rule, and prove its universality, But where the occupation is. peryanent for another purpose, and white thus appropriated the building is destroyed, it necessarily follows that the risk is at an end; the contract on the part of the insured is changed, and the insurer dis- charged from his liability. (6 Cowen, 673, Fowler vs. Ertna Ins. Co.; 2 Denio, 75, Jennings vs. Chenango Co. Mut. Int. Co.; 20 Conn. 139, Billings vs. Talland Co. Mut. Ins. Co.; 2 Hall, N. Y. 589, Delonguemore vs. Tradesman's Ins. Co.; 3 Coin, 122, O'Neil vs. Buffalo Ins. Co. 10 Pick. 535, Curry vs. Con. Ins. Oo.; 36 E., L. and Eq. 23k, Sillew v,. Thorb- ton.) By the 10th article of the deed of settlement, to which we already re- ferred, the insurers are limited in their powers. Certain risks are not to be taken at all, and others may be taken, under special agreement, subject fr additional or extra premium. It iA well settled that all the b D- -laws and conditions prescribed for the Digitized from Best Copy Available

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