Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1914-06-08
Kennebec Co.
Law Rescripts

Kennebec, SIS:
George b. Warner VS.. Narragansett
Mutual Fire Ins. Co.
George B. Warner VS.. Dirigo Mutual
Fire ms. Co.
Per Curtain.
Actions on two re insurance policies
to recover the insurance therein writ
ten. The policy issued by the Nara
gansett Company covered the plaintiffs
stock of merchandise and store xtures
and furnishings, obtained in a certain
building and additions coupled by him
as q dwelling house and store, to the
amount of $3.50, and that of the Dirigo
Company covered his household goods,
furniture. wearing apparel, etc, to
the amount of $1,000. The actions wer
tried together resulting in a verdict
for the plainti in each case, that
against the Narragansett Company be-
ing $7S711, and that against the Di-
rigo Company, $739sS6, and the cases
are before the law court on the de-
PENDANTS motion for a new trial. No
question was raised as to the origin of
the fire, and it was conceded that the
provisions for arbitration contained in
the policies were waived by the de-
PENDANTS.
/. In both cases it was urged in
the defence that the plaintiffs proof
OF loss included some articles not ip-
sured, and some articles not owned
by him, and that some articles were
fraudulentiy over-ruled. If in his
proof of loss the plaintiff made inten-
tioaal false statements, either as to
the articles insured, or as OF the guam
tity, quality or value of them, such
false and fraudulent statements would
constitute a good defence to an ac-
ton to recover the insurance. Rovin-
sky vs. Assurance Co. 10 Maine 112
But If the plaintiff acted honestlyy
ard in good faith in making his
proofs he would not be debarred from
maintaining his actions notwithstand-
ing his proofs of loss contained some
erroneous statements, not chargeable
to his falsehood, but to his intake of
memory or judgment And it was a
question of fact for the jury to de-
ternlne upon al 1.-The evidence wheth-
er or not the plaintiff dia act honest
~ and in good faith, or whether he
fraudulently included in his proofs
articles that he did not own, OF that
he knew were not insured, or fraudu-
lently mare erroneous statements as
to the value of some or the whole, OF
the property claimed to have been
lost. In the absence of any exceptions
it is to be assumed that this question
was submitted to the jury with full
and appropriate intructions, and they
decided it in the plaintiffs favor. We
have examined all the evidence with
care and do not find that the decision
Of the jury on this question is SO plain
ly against the weight of the evidence
that il should be set aside.
2. Another defence made to each
action was that the plaintiff assigned
his interest under each policy to his
father four days after the fire. But
he had a right TO do that, and his as
signee could bring and maintain these
suits for his benefit in the plaintiff
name. The plaintiff, testified that the
assignment was made because he was
heavily Indebted to his father
3. 1t was also a question of fact
properly submitted to the jury wheth-
er any of the property claimed to
have been insured was not in fact COW
cred by the insurance, because not in
the building and additions" describ-
in the policy.
IL
action against the Narragansett Co.
that the stock of merchandise was
mortgaged at the time the insurance
was applied for, and that in the writ
ten application for the insurance sign
ed by the plaintiff the question rs
the property incumbered by mortgage
or otherwise?" was answered No"
1t did not necessarily follow, as a mat
ter of law, that the plaintiff was de-
barred from maintaining his action
because of the mere fact that the APP
plication which he signed contained
that question and answer. But if he
made that answer to the question, or
signed that application knowing that
it contained that question and answer,
or was chargeable with such knowl-
edge. then his action was thereby
barred, And that was a question of
fact for the jury to decide. The agent
of the insurance company filled out
the application at the plaintiff store
and wrote the answers to all the ques-
tons therein He was perfectly famil-
lar with all the property, having at
one time rented the store and carried
on business therein; he had written
the pldlnllu INSURANCE IOf years
knew what the property consisted Of
how 1t was kept, and that its value
exceeded the insurance applied for.
The plaintiff testified that no questions
We're read to him, that he did not
know that there was such a question
in the application and that when the
agent passed to him the application to
sign he did not read it but signed 1t
rather as a matter of form. 1t was
admitted by the agent that he erron-
eously filled into the application, in
answer to another question, that the
plaintiff was the owner of the build
ing, when he knew perfectly well that
such was not the fact, and that the
plaintiffs father owned them. That
error tends to show, we think, that
no care was exercised by the agent in
filling out the application. and that
it was not read to or by the plaintiff
after it was filled out and before he
signed it, otherwise that mistake
would have been corrected. We think
the jury were justified in finding as
a matter of fact that the plaintiff was
not inquired of by the agent if the
goods were mortgaged, and did not
know that the application he signed