Alexander v. Germania Fire Insurance , 5 Thomp. & Cook 208 ( 1874 )

Barnard, P. J.

The defendant, on the 17th of May, 1872, issued a policy of insurance to plaintiff on a house in Suffolk county, for one year. The house shortly thereafter burned down. It had been occupied as a dwelling by a Mrs. Mowbray until about a month before the insurance was effected, but at the time of the insurance was unoccupied, and remained so until the fire. The application was taken by Henry Brewster, who for three years had solicited business, filled out applications, received premiums, taken surveys, and made descriptions of buildings for defendant. Mr. Brewster, knowing the house was unoccupied, applied to plaintiff to insure it. After some hesitation, plaintiff consented. Brewster made out the application, wrote all the answers which were written to the questions proposed; plaintiff signed it, and it was sent "to the defendant, and upon it the policy in question was issued. In this application there is contained the following question: “ Occupation — For what is the building used, and how many tenants are there?” To this the answer written by Brewster was “Dwelling.”

It is now claimed that the policy thus issued is void, for the reason that plaintiff by the application made a warranty as to the occupation, which was broken when made, and thereby the policy was of no effect. This presents two questions for examination: What was the warranty in question? What effect had the knowledge of Brewster that the house was unoccupied, upon the defendant?

The question of warranty would not be free from doubt if the application had been filled out by plaintiff. The insured premises had been a dwelling until a few weeks before the fire—was a dwelling house in ordinary and accurate language at the time of issuing of policy, having no tenant, and was expected to be tenanted as a dwelling in the near future. A general question as to mode of occupation might be answered as it was answered, “dwelling.” All doubt is removed as to the question when the additional fact is considered that Brewster solicited and filled up the application himself. He was defendant’s agent acting within the scope of his authority. He was told nothing by plaintiff, but wrote the company answer to the question with a full personal knowledge of the facts. Brewster cannot be held 'to have intended to deceive either his own principal or the plaintiff. In view of these facts and of the fact that that part of the question as to number of tenants is unanswered, the legaMntendment must be that the company have only a covenant that "the building was a dwelling house and when used thereafter should be used as a dwelling.

Assuming that the legal construction of the question and answer to be that the house was, at the date of the application, actually occupied as a dwelling, Brewster knew the fact to be otherwise, and prepared the application • for plaintiff to sign. As has been already stated, ordinary men would make the answer in question in reference to an unoccupied dwelling house. The defendant ought to be estopped by the knowledge of its agent when the acts and declarations of the agent induced the contract of -insurance. This seems to be the doctrine of the court of appeals on this subject. Ames v. N. Y. Union Ins. Co., 14 N. Y. 253; Rowley v. Empire Ins. Co., 36 id. 550.

The condition Ho. 11 annexed to the policy has no reference to a case like this. That condition is directed to that class of persons known as insurance brokers, whose business is to effect insurance for other persons, and who are not agents either of companies or individuals except so far as their acts in each particular case make them so. The defendant says in the condition annexed to its policies that such person shall be deemed the agent of the applicant. It cannot be intended that an application to the defendant’s agent makes such agent the agent of the applicant. If it was so intended the words used do not carry out the intent. Upon the whole case we think the plaintiff should have a judgment upon the verdict, with costs.

Judgment accordingly.