Brueck v. Phœnix Insurance

Barrett, J.: I am unable to concur in the second point discussed by niy brother Brady. In my judgment the refusal to charge as requested by the defendant’s counsel: “ That if there was any change in the risk, increasing the hazard after the first insurance and before the renewal was delivered, whether known or not known to the plaintiff, and it was not made known to the defendant at the time of the renewal, then this policy is 'fluid, and the plaintiff cannot recover upon it,” was error. It was provided in the policy as follows: “ This insurance (the risk not being changed) may be continued for such further time as shall be agreed on, provided the premium therefor is paid and indorsed on this policy, or a receipt given for the same, and it shall be considered as continued under the original representation, and for the original amounts and divisions, unless otherwise specified in writing; 'but in case there shall home been am/y change in the risk, either within itself or by neigliborvng buildings, not made known to the compa/ny. by the assured, at the tíme of renewal, this policy and renewal shall be void.” ■ This language is unambiguous — “ any change in the risk ” not “ any change in the risk known to the insured.” The change referred to is, of course, such as increased the risk. (Parker v. Arctic Fire Ins. Co., 59 N. Y., 1.) But of such a change, the plaintiff under his contract could not plead ignorance. The provision cited would become practically valueless, if the insured could escape its force and effect by shutting his eyes to his own affairs, neglecting his business or other inactivity. Nor were the defendants bound to prove a scienter. If they established to the satisfaction of the jury such a change as increased the risk, the renewal fell. As was said in Parker v. Arctic Fire Ins. Co., supra, “if notice was not gimen, the assured would lose the benefit of the contract, if it turned out that the risk was increased thereby.” This is in accordance with the spirit as well as the letter of the contract. The parties fully understood their respective rights under the original policy. The renewal was predicated upon an unaltered status. The provision requiring the insured, as a prerequisite to a valid renewal, to make known to the company any [545] change in the risk, was for the express purpose of throwing upon him the burden of knowledge. He was bound to inform himself upon the subject before applying for a renewal. This was not unreasonable, considering his facilities for information as to his own property and business. What was important to the company was the faet as to a change. This provision was intended to obviate any necessity for inquiry upon its part, every time the policy was renewed, and to compel the insured to speak if there was anything of importance to be said. Under this, the company was not bound to make any investigation or inquiry as to a change in the risk. It was entirely justified in resting upon the contract and assuming, in the absence of notice; that the condition of things contemplated by the policy remained unchanged. Nor am I entirely prepared to concur in the view taken of the insurance broker’s authority. It seems difficult to distinguish the case on this head from Standard Oil Co. v. Triumph Ins. Co. (64 N. Y., 85). The same doubts apply to the exclusion of the evidence offered as to custom. But without passing definitively upon these latter questions, I think there should be a new trial because of the refusal to charge as requested with respect to the change in the risk. Davis, P* J.: The application for the renewal, without notice of any change in the risk, taken in connection with the language of the policy, was, in my judgment, in legal effect a warranty on the part of the assured that no change, substantially increasing the risk, had taken place. It would make no difference in the effect of such warranty that a material change, increasing the risk, was in fact unknown to the assured. He undertakes that it does not exist, and not that he is ignorant of its existence, and he must be bound by his contract. Por this reason, as well as for the views suggested by my brother Barrett, I fully concur with him that a new trial must be granted on the exception to the refusal of- the court to charge on this subject, as requested by defendant.