Dodge County Mutual Insurance Co. v. Rogers

By the Court, PAINE, J. We shall not attempt to notice all tbe numerous exceptions taken by tbe plaintiff in error, as we think tbe judgment must be reversed for tbe refusal of tbe court to instruct tbe jury as requested, that “ every increase of tbe risk after tbe insurance, within tbe control of tbe assured, rendered tbe policy void.” This language can be fairly held to include only such an increase of tbe risk as was caused or permitted by tbe assured. And, so construed, there can be no doubt of its correctness as a legal proposition. Indeed, tbe policy itself contains an express provision to that effect. It is claimed by tbe counsel for tbe defendant in error, that tbe barn bad been previously used for dressing lumber, and for sleeping purposes, and that this was known to McK.ee, tbe agent of tbe company, who filled out tbe application; and that this being so, tbe company is precluded from raising any objections upon these grounds. There are, undoubtedly, cases which support tbe position that where facts relative to the condition of tbe property are stated to tbe agent, or are known to him, and be fills out the application, without stating them, tbe company cannot avoid tbe policy by reason of their not being stated. But we cannot see that this principle can be so applied as to cure tbe error here. For tbe plaintiff himself, who is tbe only one who testified on tbe point, did not say that the barn was used as a carpenter’s shop at tbe time tbe application was made, or as a sleeping-room, but that it bad been used for dressing lumber tbe season before, and that this was known to McKee. Now it does not follow that an agent, know [340] ing that the premises have been previously used tor more ' hazardous purposes than they are then used for, is to assume necessarily that the owner intends thereafter to use them for such purposes. And it does not appear here that the fact was communicated to McKee in such language as informed him that it was a habit or a custom of the owner to use the barn for those purposes, and from which he might infer an intention to continue such use. We cannot say, therefore, that it sufficiently appears from the evidence presented here, that McKee was so informed of those facts as to make the company responsible for his neglect to state them in the application. This question should have been submitted to the jury, whether the agent was fully informed by the plaintiff of his intention to use the barn as a carpenter’s shop, and as a sleeping-room, during the life of the policy. If he was, he having filled out the application, and having inserted no answer to the question as to how the premises were occupied, it may well be said that the company, by issuing the policy without such answer, waived it, and could not afterwards object to any use of the premises of which the agent was fairly notified. But if the jury should find that the agent had no notice of the intention to use the barn for the purposes mentioned, and that it was not actually so used at the time of the application, then the question would be, whether the plaintiff had subsequently occupied it for those purposes, and if so, whether that increased the risk. And they should have been instructed that if these facts were found in the affirmative, it would avoid the policy. But as the court refused this instruction, the judgment must be reversed, with costs, and a now trial awarded.