Lane v. Maine Mutual Fire Insurance , 12 Me. 44 ( 1835 )

Parris J. —

The first question presented for our decision is, whether the hiring and occupation of the store by Dunn, from May to November, was such an alienation of the property insured as rendered the policy void under the 9th section of the act of incorporation therein referred to.

In the construction of this language we should have regard to the circumstances under which it was used, and the situation and object of the parties using it. The insured was the owner of the store, and for the purpose of securing his interest against the peril of fire, became a member of the company, assuming the obligations of membership by the payment of money and depositing his note, thereby giving the company a lien, for the payment of such note, on the building insured.

The insurers, in assuming the risk, provide for the continuance of the interest of the assured in the property covered, so long as their liability continues. Tu other words, they guard against its becoming a gaming or wager policy in any event. Accordingly so long as the property covered belongs to the insured, whether it be in his possession, or that of his agent, servant or lessee, the company’s lien continues, and an insurable interest remains. But when the property is alienated, that is, when the insured is divested of title by sale or in any other manner, the lien of the company ceases, and the insured is no longer a member of the company. If a loss then happen it is not his loss, for as he had no property he could sustain no loss, and consequently could be entitled to no satisfaction. The party insured must, in all cases of fire insurance, have an interest or property at the time of insuring and at the time the fire happens. But he need not have an absolute and unqualified or even immediate interest in the property insured. A trastee, mortgagee, reversioner, a factor or agent of goods to be sold on commission may legally insure their respective interests, subject to the rules of the office in which the insurance is effected. Upon general principles applicable to fire insurance, the person insured cannot convey the estate insured and assign the policy, so as to render it valid in favor of the grantee and assignee, unless by consent of the insurer. Mutual offices should have the power of exercising a discretion in the selection of persons whom they may admit to membership, and whose property they may insure. The character of the person insured may be a subject of importance.

If by conveyance of the estate and assignment of the policy, the purchaser would stand in the place of the insured and be entitled to indemnity under the policy, the office might be defeated of this right of selection.

Under these views of the law relating to fire insurance, we think the occupation of the store by Dunn, who, having no lease in writing, was at most only tenant at will, was not an alienation of the property insured within the true meaning and intent of the act of incorporation. The language is, “ when the property insured shall be alienated by sale or otherwise,” &ic. The word alien or alienate extends not only to alienations of land in deed but also to alienations in law. A transfer of title by devise, descent, or by levy would be as technically an alienation as a transfer by deed. BlacJcstone, speaking of title by alienation, Book 2, ch. 19, says. " The most usual and universal method of acquiring a title to real estate is that of alienation, conveyance or purchase in its limited sense ; under which may be comprised any method by which estates are voluntarily resigned by one man, and accepted by another ; whether that be affected by sale, gift, marriage, settlement, devise, or other transmission of property by the mutual consent of the parties.” Alienation is defined in Jacob’s Law Dictionary to be a transferring the property of a thing to another.

The object of the statute was, without doubt, to render certain by positive enactment what would otherwise have depended upon common law principles and judicial decisions, viz. that the policies of the company should not be obligatory any longer than the property insured continued in the individual named in the policy, as the owner; and that by a transfer of his interest the policy should be void. This construction is believed to be in accordance with general usage, and the intention and understanding of the parties.

As to the goods, we are clear that the policy was intended to cover and did cover whatever goods the plaintiff might have in his store, at any time during the continuance of the risk, not beyond the amount actually insured.

A construction limiting the policy to the goods actually in the store at the time the insurance was effected would defeat the very object of the insured, and so it must have been understood by the insurer. The plaintiff’s business was trade, the vending of goods from his store. According to the construction put upon this policy by the company, the plaintiff has no security except upon the goods actually in the store when the policy was issued, and when those were disposed of, their liability was at an end. We cannot listen, for a moment, to such a suggestion. A policy-of insurance being a contract of indemnity, must receive such a construction of the words employed in it as will make the protection it affords coextensive, if possible, with the risks of the assured. Dow v. The Hope Ins. Co. 1 Hall, 66. The risk of the assured was to continue six years, and the assurers assumed that risk to the amount of two hundred dollars on the goods in the store. Both parties must have understood this to mean on goods which may be in the store at any time during the continuance of the policy. If the assured had goods to an amount exceeding two hundred dollars, the undertaking of the company was limited by that amount. If, by sale, the quantity was reduced below that sum in value, the insurers were so far benefited, as their risk was diminished below that paid for by the premium, and if the whole were sold, the insurers were benefited to a still greater degree by a suspension of the risk. And it was a mere suspension, for upon filling up again the risk revivedand we see no difference in principle between the case where the quantity is diminished by a partial sale and then replenished, and where the whole Is sold and an entire new stock purchased. In either case there is a risk, limited in amount by the contract, which has been assumed by the insurer, and for which the insured has paid the stipulated premium.

We are clear that it is a continuing risk, to the amount specified, upon such goods as the insured may have in the store within the term covered by the policy, and not confined to such as were there at the time of assuming the risk.

The defendants have filed a motion in arrest of judgment on two grounds; 1st, because the plaintiff has not alleged in his declaration that he was the owner of the store and goods at the time they were burned; and 2d, because he has not alleged or set forth the value of the store and goods at that time.

The plaintiff alleges that his store was consumed by fire; and although this is not a technical averment that he was the owner, yet we think it is sufficient after verdict. The authorities all concur that where there is any defect, imperfection or omission in pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the Judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict. 1 Saund. 228, a. As when a promise depends upon the performance of something to be first done by him to whom the promise is made, and in an action upon such promise the declaration does not aver performance by the plaintiff, or that he was ready to perform, and there is a verdict for the plaintiff, such omission is cured by the verdict, — ibid. 228, b; and in East v. Essington, Ld. Raymond, 810, a condition precedent was not averred to be performed, yet the declaration was held good after verdict, for, say the court, if the condition had not been performed the jury would have found non assumpsit.

According to well established principles applicable to fire insurance, a verdict could not have been found, in this case, for the plaintiff, unless he had given evidence to the jury that the store and goods were his property at the time they were consumed. Unless this had been shewn he would have failed to prove that he sustained any loss, and consequently would not have been entitled to any damages and the verdict must have been against him. So also, as he must have proved the amount of loss to enable the jury to assess the damages, he must consequently have proved the value of the store and goods when consumed, for without this proof the amount of loss could not have been ascertained. The declaration might, perhaps, have been adjudged defective upon special demurrer, but we tbinlc it is sufficient after verdict. The Court will not arrest a judgment unless it be perfectly clear that the plaintiff is not entitled to retain it, and after verdict every legal intendment is to be admitted in its support.

There must be judgment on the verdict.