Mullaney v. National Fire & Marine Insurance

Gray, C. J. The St. of 1864, c. 196, requires that “ the conditions of the insurance shall be stated in the body of the policy.” It has been held by this court that this requirement is complied with by a statement of the substance of the condition on the face of the policy, with a distinct reference to the schedules or details of regulations printed upon a subsequent page of the instrument • but that a mere general declaration upon the face of the policy that it is made and accepted in reference to the conditions annexed, and that they are part of the contract, cannot be allowed any effect, without evading the provision and defeating the object of the statute. Eastern Railroad v. Relief Ins. Co. 98 Mass 420, 426, 428. The present case is to be determined by the op* plication to the policy before us of the rule thus established. [400] The clause which declares that “ this policy is made and accepted in reference to the conditions hereunto annexed, which are hereby made a part of this policy, and to be used and resorted to in order to ■ explain the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for,” is of no effect whatever. The provision that if the premises, at the time of the fire, shall “ be in whole or in part occupied for any purpose considered, rated or classified as more hazardous, in the printed conditions hereto annexed, than that described in the application,” unless permission so to occupy them is expressed in or indorsed on the policy, the policy shall be void, evidently refers to the classification of risks as hazardous, extra hazardous or specially hazardous, as mentioned in the first and thirteenth conditions of insurance annexed, and might perhaps include the third and fourth conditions relating to articles illegally kept, or not insurable at all, or required to be particularly specified; but cannot be deemed to include the second condition, requiring a description of the nature of the interest of the assured, or the fourteenth, as to other insurance, or the sixteenth, as to buildings remaining unoccupied for thirty days, the effect of which would depend not upon the question whether the premises were in that state at the time of the fire, but whether they had continued in that state for thirty days. The provision requiring proofs of loss to be made “in accordance with the terms and provisions of this policy ” contains no reference to the conditions of insurance upon the back of the policy, and does not therefore state them as the statute requires. It follows that the seventh, eighth, ninth and tenth requests for instructions were rightly refused, and that the defendant ha« no ground of exception to the instructions given upon th? subjects embraced in those requests. The tenth and sixteenth conditions of insurance not being so stated in the policy as to bind the assured, it is unnecessary to consider whether the construction given to those conditions at the trial was correct. This court concurs in the opinion of the court below that the twelfth instruction requested does not appear to have been material. Exceptions overruled.