Armenia Ins. v. Paul

1. The issuing of a policy of insurance when a portion of the questions in the appplication remain unanswered, is a waiver of the answers to .such questions. 2. In an application'for a policy of insurance the eleventh interrogatory was: “What is the distance, occupation and materials of all buildings within one hundred and fifty feet.” It was contended that the ¿mission to make any answer to the interrogatory avoided the policy. Held, that it was within the power of the company to decline the risk or seek further information, and having issued the policy they must be presumed to have been satisfied with the risk.

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 300. Covenant on a policy of insurance by Joseph Paul and Mary Ann Paul, his wife, in right of said wife, against the Armenia Insurance Company of Pittsburgh. Paul and his wife kept a saloon in Chartiers borough. The fixtures, liquors and furniture were owned by the wife, and she insured them in the defendant company. In the application for the policy the property was described as situated along “ the line of the Chartiers Valley Railroad and P. C. & St. Louis Railroad, at the junction and near the depot.” Said application contained a number of questions to be answered by the insured, among which was the following:— “ 11. External Exposure. — What is the distance, occupation and materials of all buildings within 150 feet, north, south, east, west?” To this question no answer was written down in the application. It was filled up by the agent of the company, as Mrs. Paul could not write, and she signed the application by making her mark. Several other questions were not answered in the application. A clause of the policy read: “ Any omission to make known every fact material to the risk” shall avoid the policy. Beneath the signature of the applicant there was printed in small type, Make a diagram of the premises on the other side of this sheet.” Such a diagram was made, indicating that there were buildings twenty feet on the west and forty feet on the north; but there was no description of the buildings. At the trial, before White, J., the defendants, for the purpose of showing the location of the building and its surroundings and the exposures at the time the insurance was obtained and at the time the fire occurred, and that the representations contained in the application of the assured were false with regard to said exposures and surroundings, increasing the risk of hazard, offered the application and diagram thereon. Objected to, for the reason that the application- was silent upon the question of exposures, the blank for exposures not being filled up; that the diagram of the buildings was not in contradiction, and that the offer was incompetent for the purpose for which it was offered. Objection sustained. The defendants then renewed the offer of the diagram, for the purpose of showing an omission to make known material facts, to wit, that the building containing the property insured was within less than 150 feet, to wit, within 17 feet of a building used for rendering lard and tallow — a butcher-shop, a building 8 by 25 feet, which said grease-rendering building was within 2 feet of a wood and coal-house, and was connected by a row of frame structures extending within 2 feet of the building containing the property insured; that the building containing the property insured was within about 20 feet of two other buildings or dwellings, between which dwellings and the buildings containing the property insured there stood a frame coal-house and water-closets. The building was also within 9 feet of the track of the Chartiers Railroad Company. Objected to as incompetent and irrelevant. Objection sustained. Verdict for plaintiffs for $945.41, when defendant took this writ and alleged that the court erred in rejecting the above testimony. A concealment of facts material to the risk and within the knowledge of the insured vitiates the policy: Satterthwaite v. The Mutual Beneficial Ins. Co., 2 Harris 395; Jennings v. Chicago Ins. Co., 2 Denio 75. Instead of an answer to the eleventh interrogatory there is a blank, which is equivalent to a representation that there was no building in any direction within one hundred and fifty feet. The issuing of a policy on an application which contains no answer to certain questions is a waiver of answer to those questions, and to avoid the policy in such cases, the insurers must prove untrue statements other than those inquired about: Wilson v. Hampden Fire Ins. Co., 4 R. I. 159; Campbell v. M. & F. Mutual Fire Ins. Co., 37 N. H. 35; Cumberland Valley v. Schell, 5 Casey 31; Liberty Hall Association v. Housatonic Mutual Fire Ins. Co., 7 Gray 261; Hall v. Peoples’ Mutual Fire Ins. Co., 6 Gray 185; Lorillard Fire Ins. Co. v. McCullaugh, 21 Ohio St. 176; Dodge Co. v. Mutual Ins. Co., 12 Wis. 337. If the omission to answer the printed question No. 11 in the application is waived by the issuing of the policy, the diagram on the back of that paper cannot prejudice the claim of the insured. It was not signed by the assured, nor is it referred to in the answer to any of the questions.' The defendants having issued the policy without-requiring any answer to the eleventh interrogatory contained in the application concerning the occupation of the building insured, it ivas fair to infer that they waived information on that point; and having done so, they cannot now avoid the policy by proof that the premises were used for a hazardous purpose or business : Liberty Hall Association v. Housatonic Mutual Ins. Co., 7 Gray 261.