Ely v. Hallett — 2 Cai. 57

Majority

p. 57

Ely against Hallett.

Headnote

If the assured have information of a violent storm the day after his vessel has sailed, and he states only that there has been blowing weather on the coast, it is a misrepresentation which will avoid the policy.^[1]

UPON a policy of insurance on freight of goods, the defendant relied on testimony, showing that the plaintiff wás informed, prior to making the insurance, that a very severe storm had happened at Norfolk shortly after the sailing of the vessel, which would in all probability endanger her safety, and which circumstance he did not communicate to the defendant.

Upon this testimony the jury returned the following verdict: “ That the plaintiff was possessed of information that a violent storm took place at Norfolk, about eleven hours after the vessel sailed, and that he did not communicate such information to the defendant. They further find, that there is no evidence to prove that such information was in the knowledge of the defendant by any other means-But that a communication was generally made to the de fendant, before be signed tbe policy, that there bad been blowing weather, and ^severe storms on tbe coast after tbe .vessel had sailed; but without any reference to the particular storm first above mentioned. And they also find that the danger arising from the storm first above mentioned did increase the risk.” A case stating this finding was made for the opinion of the court, whether the plaintiff was entitled to recover; if so, then judgment to be entered for him, as for total loss; if not, then for the ■ defendant, either party to be at liberty to put the case into the form of a special verdict.

Higgs, for the plaintiff.

The verdict is so imperfect that at least a new trial ought to be granted. The jury ought to have found particularly the nature and extent of the storm, before they can be warranted in drawing the inference of an increase of risk. It might have been violent at Norfolk, and yet a vessel sailing twelve hours before, might have been perfectly out of the reach' of its influence, as it often happens that gales of wind are not felt at a considerable distance from any given spot. They might mean that the storm, when compared with good weather, increased the risk, but not when compared with the blowing weather which was communicated. An insured is not bound to particularize storms, and recount all that have blown. A general information is enough, because no exact line can be drawn to settle, on principle, the degree and period of the storm.

• Hamilton and Boyd, contra..

The finding is express that the risk was increased; this is enough ; for it is a principle in concealments,^[2] that the ultimate event arising from it

p. 58

is immaterial, if the hazard be augmented, because the question is, what effect would the disclosure have had on the underwriter at the time of underwriting, either as to

his premium or engaging in the contract. Materiality and immateriality of communications are for the jury, and they have determined the circumstance material. The storm was in the plaintiff’s knowledge ; his silence therefore

vitiates tbe policy. Tbe verdict is certain to a common intent, and as it is in tbe nature of a special verdict, tbe court cannot draw inferences of fact, tbougb they may of law. The requisites asked for in the verdict, as to distance, &c., are impossible ; nor is it difficult to draw tbe line as to communications. Not every storm, but those which enhance tbe risk, such as tbe *one now found are to be disclosed. In Seaman v. Fonnereau, 2 Stra. 1183, tbe concealment of a storm happening near where a vessel was seen, was held fatal, tbougb she was not lost in it.

Riggs, in reply.

Tbe rules of pleading do not apply to verdicts; tbe one in this case is too particular for tbe general conclusion, and not particular enough for tbe present finding.

delivered tbe opinion of tbe court. Tbe underwriter on a policy of insurance enters into contract, and computes tbe premium, in full confidence that tbe insured, being fully informed of all circumstances relating to tbe intended voyage, bas dealt fairly with bim, and bas kept back nothing which it might be material for bim to know. Every fact and circumstance, therefore, wbicb can possibly influence tbe mind of tbe insurer, in determining whether be will underwrite tbe policy, or at what premium, is material to be disclosed, and a concealment thereof will vitiate tbe policy. A concealment is to be considered, not with reference to tbe event, but to its effect at tbe time of making tbe contract. Tbe question, therefore, must always be, whether, under all tbe cbcumstances, there was at tbe time the policy was underwritten, a fair representation, or a concealment, either designed and fraudulent; or, though not designed, varying materially tbe object of tbe policy, and changing tbe risk understood to be run. If we test the facts found by tbe jury by tbe principles of law above laid down, it will, we think, be found, that tbe concealment was such as to vitiate tbe policy. Tbe information possessed by tbe assured was special and particular; that about eleven hours after tbe sailing of tbe vessel, a violent storm took place at Norfolk. Tbe communication made to tbe underwriter was very general and vague; that there bad been blowing weather and severe storms on tbe coast after tbe vessel sailed, but without any reference to tbe particular storm above mentioned. Unless tbe assured intended to suppress some information be bad relative to this weather, we can see no reason why be did not communicate tbe information be bad actually received. From tbe general communication given, tbe underwriter might be induced to calculate that tbe storm bad not reached Norfolk ; or that tbe vessel bad been out so long as not to be ^endangered by it. Tbe representation made to tbe underwriter was, that there had been blowing weather and severe storms. Tbe information possessed by

Concurrence

p. 60

the assured was, that there had been a violent storm. This being the language of the jury, shows that the representation was not made in quite as forcible terms as those in which the information was received by the assured. In addition to this, the jury have found explicitly, that the storm at Norfolk did increase the risk, and that no communication of the information received by the assured relative to this storm, was made to the underwriter. The increase of the risk being matter of fact, and having been thus found by the jury, must, we think, be conclusive. We are therefore of opinion that the defendant ought to have judgment.

I cannot concur in the opinion of the court. It is rather too much to say, the communication to the underwriter must be in the very express words in which the assured has received it. The information was such as to give the defendant reason to think the risk was increased. It comprehended, in my opinion, every thing that was necessary. It is sufficient, in cases like the present, that the insurer has a substantial communication.

Judgment for the defendant.