Fowler v. Ætna Fire Insurance

By the Court, Sutherland, J. Two new trials have already been granted in this case; this is the third verdict which the plaintiffs have had in their favor. When the case first came before us, in 6 Cowen, 673, we held that the description in the policy of the house which contained the goods insured, as a frame house filled in with brick, amounted to a warranty that it was a house answering that description, and that the plaintiffs could not recover, unless the proof strictly sustained the warranty. The well established principle in marine insurance, that a warranty is in the nature of a condition precedent, and must be fulfilled or performed by the insured before performance can be enforced against the insurer, we held to be equally applicable to fire as to marine policies; we knew of no case or principle which would authorise a different rule of construction in the one case from that which the same terms had uniformly received in the other. The verdict was then set aside on account of the misdirection of the judge. He instructed the jury, that if the description was made by mistake, and not fraudulently for the' purpose of getting insurance at a reduced rate, the plaintiff was entitled to recover. In a case of warranty it is perfectly immaterial whether the misdescription is the result of fraud or mistake; it is a condition precedent, and no excuse can be received for the non-performance of it. The second verdict was set aside as being against the weight of evidence on the controlling point, whether the house in question was or was not filled in with brick. At the last trial, the charge of the judge in the abstract was correct. It was undoubtedly competent for the plaintiffs to show that the words, “ a frame house filled in with brick,” had, by the custom or usage of insurers and insured, acquired a particular technical meaning, different from that which the words might generally be understood to import. They are not definite and unequivocal in themselves; they may apply to the partitions as well as to the external frame of the house. The plain [275] tiffs’ own testimony shows that they are not generally considered as requiring the gables to be filled in, but that the brick goes no higher than the eaves; they are therefore susceptible of explanation, and if it had been shown that by the uniform and established usage and custom of insurers and insured, they were understood as embracing a house filled in in front and rear, with a brick house on each side of it, we should be bound to consider such to be their legal effect between these parties. But the difficulty in this case is, that the evidence to establish such usage is entirely defective, while the charge of the judge was perhaps calculated to make an impression upon the jury, that there was competent and sufficient evidence of such usage. Still there was evidence on both sides of the question; and I am not prepared to say that we ought, under the circumstances of this case, to consider the observation of the judge upon that point as amounting to a misdirection which would require us to set aside the verdict. The evidence upon the question whether the house was in fact filled in with brick, is not essentially different from what it was on the preceding trial. I still think the verdict on this point is against the weight of evidence ; but after two concurring verdicts in a case where there were many witnesses, and a great deal of testimony on both sides upon a mere question of fact, (supposing there was no misdirection,) I should not think it a discreet exercise of the power of this court again to interfere with the finding of the jury. Motion for a new trial denied.