Chaffee v. . Cattaraugus County Mutual Insurance Company

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 378 The application of the insured, in this case, was, by the express terms of the policy, to enter into and form part of it. Its provisions, therefore, must be deemed part of the policy itself, so far as any question may arise out of them. (Murdock v. Chenango Mutual Insurance Company, 2 Comst., 210; Egan v. Mutual Insurance Company of Albany, 5 Denio, 326;Jennings v. Chenango Mutual Insurance Company, 2 id., 75;Burritt v. Saratoga County Mutual Fire Insurance Company, 5Hill, 188.) Any statement contained in it, therefore, constitutes a warranty. (3 Seld., 370; 2 Comst., 221.) And a warranty in relation to the situation of the property is a condition precedent, and, unless substantially true, the policy will be void. (2 Comst., 221; 16 Wend., 481, and cases citedsupra.) The main question, then, in this case, is, whether the answer to the fifth interrogatory, by a fair interpretation of *Page 379 the question and answer, taken together with the clause at the bottom, that "all exposures within ten rods are mentioned," asserts that no buildings other than those mentioned are situated within ten rods of the insured building. The question calls for the "relative situation as to other buildings, distance from each within ten rods, and for what purpose occupied," c. The answer is, "In the middle of a block of three stores; one clothing store; one grocery; one hardware and stove store; one tin shop; Mansion House across the street, about six rods; cabinet shop, three rods; harness shop, five rods; grocery and dwelling-house, five rods; wagon shop and blacksmith shop, about eight rods; two small barns from four to eight rods; new building to be used for tin shop, about three rods; one store-house and one barn about four rods." In addition there is placed at the bottom the clause, "all exposures within ten rods are mentioned." The question manifestly calls for all the buildings within ten rods and their several distances from the building proposed for insurance. And the answer names several buildings and gives their distances. Giving the language a fair natural construction, it seems to me plain that it asserts that the buildings named are all the buildings within ten rods. And such has been the uniform construction given by the courts to similar language in other cases. (5 Hill, 188; 2 Denio, 76; 2 Seld., 53; 3 id., 370; 7 Hill, 122.) The language is very different from that used in the case ofYates v. Madison County Mutual Insurance Company (2 Comst., 43). In that case the inquiry was, how bounded and distance from other buildings, if within ten rods, and the answer was, "the nearest building on the east is the dwelling-house occupied,"c., "which is about forty-eight feet," c., and in a similar manner giving the distance of the nearest building in each direction from the insured building. It will be observed that the inquiry in that case was ambiguous, admitting of the interpretation that only the nearest buildings, *Page 380 those forming the boundary, if within ten rods, were called for. And the answer clearly showed that it was in that sense that the applicant understood it. The court held that it being thus manifest to the company, when the application was presented, that the applicant understood it in that sense, if they were not satisfied with the answer they should have required it to be made more definite. And that as it was plain that the applicant did not mean to assert the buildings named to be all the buildings within ten rods, there was, of course, no warranty to that effect. In the case at bar the question manifestly calls for all the buildings, and the answer, by a fair implication, purports to give them all. It is claimed upon the part of the plaintiffs, that the clause, "all the exposures within ten rods are mentioned," should be deemed to modify the language of the answer, so as to make it merely an assertion that all the buildings within ten rods which were exposures, that increased the risk, were mentioned. I agree with the counsel that this clause should be deemed a part of the answer, but I do not agree that it aids the construction which the plaintiffs seek to give to the answer. The question does not, as I understand it, call for every structure which could possibly be called a building, but for all those buildings which, if near enough, would expose other buildings to fire or be the means of communicating fire to other buildings. And exposures mean in this connection precisely the same thing. It was not the design of the company to leave it to the applicant to decide the question in regard to what buildings, within ten rods, added to the risk and what did not; requiring a statement of the former only. If that had been the purpose of the inquiry, there would have been no reason for limiting it to those within ten rods. The question assumes that buildings beyond ten rods would not materially affect the risk, that within that distance they might affect it. The inquiry was, therefore, for all the buildings which, in their nature or character, would expose other buildings in their neighborhood, *Page 381 reserving to the company to pass upon the extent — or whether at all — the risk would be increased by them, and to fix the rate of insurance accordingly. The term "exposure" refers rather to the character than to the location of the buildings. Now it is manifest that the buildings mentioned in the case as being within ten rods and not contained in the answer, were of a character deemed exposures in the ordinary use of the term. And, to render it more certain, the judge was asked to charge that a wooden building, situated within ten rods, was an exposure within the meaning of the term as used in the application, which he refused. Besides, the case was not tried upon any theory that the buildings were not exposures. No evidence was given nor question made during the trial, upon the point whether they did or did not expose the insured buildings to fire. The charge of the court, therefore, was entirely outside of the case, as it had been tried upon both sides. But if it were not, the clause, instead of modifying what would otherwise be the natural construction of the answer, renders it still more clear that all the buildings within ten rods were designed to be stated. Suppose the answer had, after the statement of the various buildings and their several distances, continued, "and these are all the exposures within ten rods," could there be any doubt that the terms, "buildings" and "exposures," if thus used, would mean the same thing. I think, therefore, that this part of the charge was erroneous. The judgment of the Supreme Court must be reversed and a new trial granted.