Robinson v. Phœnix Insurance

Cole, J. i. contbaot: alteration : insuranee policy, The only errors assigned are as to the refusing and .the giving of the instructions as shown in the preeeeding statement of the case. It must be ;J , , . _ . , borne m mind, that the alteration complained of was not of the policy while it was in force as such, for the purpose, or whereby the liability of the insurers was increased or varied; but that the alteration was made [435] after the loss had occurred, and after the rights and liabilities of the respective parties were definitely fixed. Whether an alteration is material or not is a question of law for the court; and since the facts set forth in the instruction asked by plaintiff, if found by the jury, would show the alteration to be both immaterial and made without fraud, that instruction should have been given. Indeed, we go further, and hold that the policy of insurance and indorsements thereon, so far as they relate to plaintiff’s property, constitute a contract of insurance with him, which would not be avoided by even a material alteration of any contract with another, indorsed thereon. k.— immaterial alteratiou: intent. The instruction asked by defendant and given, was, in the view already expressed, erroneous. If there was only an alteration of the contract of insurance with _ .. , Oatim, conceding there was such a contract, it would not affect the contract with the plaintiff; and, again, if the alteration was immaterial, the intent with which it was made would not make it material so as to avoid the contract, — that is to say, an immaterial alteration is not made material simply by the intent; and if the intent to give a different effect to the instrument was not and could not be effectuated by the act done, the intent simply would not avoid it. But the instruction given by the court, on its own motion, extends into a broader field, and embodies a correct principle of law. If the plaintiff, by the alteration in striking out the name, thereby made the policy and all its indorsements his own, and did so with intent to claim for himself the whole amount of the losses sustained, then it would be a material alteration, and would avoid the instrument, because thereby there would be an attempt to enlarge and alter his own contract, and not simply an alteration of the Catlin contract. If the jury find there was an alteration of the contract [436] with Gatlin only, that will not avoid the contract with plaintiff, though it was done by him and was material. Nor would an immaterial alteration of the contract with plaintiff avoid it. But if there was such an alteration of the contract with Catlin, as to affect and enlarge the contract with the plaintiff, and certainly if there was an intent so to do, -such alteration would avoid it. And if the jury believe the testimony of plaintiff, as contained in the bill of exceptions and set forth in the statement pre-: ceding this opinion, to, be the whole truth in relation to it, they should find the alteration immaterial, and that it did not avoid the contract with plaintiff. Reversed.