Hill v. Middlesex Mutual Assurance Co.

Lathrop, J. The policy in suit is in the Massachusetts standard form, and contains the following clause : “ This policy shall be void ... if without such assent, [the assent in writing or in print of the company,] the situation or circumstances affecting the risk shall, by or with the knowledge, advice, agency or consent of the insured, be so altered as to cause an increase of such risks.” The judge who tried the case without a jury has found as a fact “that the risk was increased during the progress of the material alterations, and that the rate of insurance during that [545] time was greater in consequence of the work done.” We are of opinion that this finding was fully warranted by the description of the alterations set forth in the bill of exceptions; and that what was done was not in the nature of ordinary repairs, but constituted material alterations, which might properly be found to increase the risk. The first instruction requested was therefore properly refused. The second instruction requested was given. The third instruction requested proceeds upon the theory that as the alterations were completed before the fire, and did not contribute to the fire, the policy was in full force at the time of the fire. The judge refused to give this instruction, and, in addition to the finding of fact already stated, found that the defendant company had no notice of such repairs during the progress of the • work nor afterwards, prior to the fire. The third instruction requested was rightly refused. The fact that a breach of condition is past and did not contribute to the ■ loss does not necessarily put an end to the right of the insurer to avoid the policy. Kyte v. Commercial Union Assurance Co. 149 Mass. 116. Wainer v. Milford Ins. Co. 153 Mass. 335, 339. See also Imperial Ins. Co. v. Coos County, 151 U. S. 452; Moore v. Phoenix Ins. Co. 62 N. H. 240; Wheeler v. Traders’ Ins. Co. 62 N. H. 450. Exceptions overruled.