Mullin v. Vermont Mutual Fire Ins. , 54 Vt. 223 ( 1881 )

The opinion of the court was delivered by

Powers, J.

It appears from the exceptions that the plaintiff’s application for a policy was unsatisfactory when first presented to the defendant, and that thereupon it was returned with a call upon the plaintiff to answer certain special questions in writing embodied in the application when so returned. The plaintiff answered that “ the store was occupied by Mullin Bros, for merchandize, drugs and groceries, Mullin Bros., owners.”

On trial the plaintiff conceded that “ the lower story of said building was occupied as a grocery and drug store ; that the goods were owned, and store rented by M. Carrigan, but that the plaintiff and his brother conducted the business carried on there in the name of Carrigan as clerks; and that the stock of goods, furniture and fixtures therein were owned by said Carrigan, and not by said Mullin Bros.” It is thus seen that the application contained two clear falsehoods: first, respecting the occupancy of the building; and second, respecting the ownership of the goods.

We are not required in this case to examine the cause, fruitful of confusion at least, respecting the materiality of representations made in applications for insurance; nor, whether the representations made amount to warranties. The ease shows that the defective application was returned to the plaintiff, and he was asked specially who occupied the store, and owned the goods, and the false answers were given to these special questions: It is now well settled that the mere fact of making such inquiries and giving answers thereto, make the same material; the parties by their own acts have made them so. “ The inquiry and answer are tantamount to an agreement that the matter inquired about is material, and its materiality is not therefore open to be tried by the jury.” May on Insurance, 2d ed. s. 185. And this question of materiality under such circumstances is for the court. May, idem.

" Accordingly, upon this state of facts the court erred in not ordering a verdict for the defendant on its motion therefor. As the ruling upon this question concludes the plaintiff upon the case he made, it is unnecessary to consider the other questions discussed in argument.

The judgment is reversed and case remanded.