and others being comparatively trivial in character. The language of the policy is the same in respect to them all, that the policy shall be void. In Hinckley vs. Insurance Co., 140 Mass., 38, 1 N. E. Rep., 737, the policy was in the same form as those in the present cases, and for a short time during the term of the policy the plaintiff kept a bowling-alley and billiardtable without having any license therefor. There was no question of increase of risk or other actual prejudice to the insurer; and, under these circumstances, two questions arose: First, whether the plaintiff's act fell within the provision that the policy should be void if gunpowder or other articles subject to legal restriction should be kept in a manner different from that allowed by law; and, secondly, whether, assuming that the policy would be void during the time of the illegal keeping of the bowling-alley and billiard-table, it would revive after such temporary use had ceased. In deciding the case the court intimated that the plaintiff's act was not within the meaning of the provision in the policy, unless the risk was thereby increased, but placed the decision upon the second ground, that the policy would revive. The court now thinks it would have been better to place the decision of this part of the case solely upon the first ground, leaving it an open question whether a departure from the terms of the provisions of the policy, without an increase of risk, may be deemed merely to suspend, and not absolutely to avoid, the policy. However that may be, we think an increase in risk entitles the insurer to avoid the policy absolutely. The contract of insurance depends essentially upon an adjustment of the premium to the risk assumed. If the assured, by his voluntary act,

increases the risk, and the fact is not known, the result is that he gets an insurance for which he has not paid. In its effect upon the company it is not much different from the misrepresentation of the condition of the property.

"If the provision stood alone, that in case of any material misrepresentation as to the risk, or any voluntary increase of risk afterwards, the policy should be void, it could hardly be doubted that the words should be taken in their natural obvious meaning. The fact that with this are coupled the other provisions above referred to does not change its meaning with reference to the effect and consequence of an increase of risk. An increase of risk which is substantial, and which is continued for a considerable period of time, is a direct and certain injury to the insurer, and changes the basis upon which the contract of insurance rests; and since there is a provision that in case of an increase of risk which is consented to or known by the assured, and not disclosed, and the assent of the insurer obtained, the policy shall be void, we do not feel at liberty to qualify the meaning of these words by holding that the policy is only suspended during the continuance of such increase. Lyman vs. Insurance Co., 14 Allen, 329; Mead vs. Insurance Co., 7 N. Y., 530. It follows, therefore, that the fourth instruction which was requested, or something in substance like it, should have been given. Upon the facts stated and assumed, the increase of risk, if there was one, continued for 15 months, and could not be treated as a casual, inadvertent, or inevitable thing. Exceptions sustained."

CHAPTER V.

LIFE INSURANCE.

SECTION 29.

NATURE OF THE CONTRACT.

The theory of a life insurance contract differs very materially from that of any other kind of insurance contract. Although in an early case an attempt was made to reconcile the contract of life insurance with the indemnity principle existing in all other forms of insurance,' this view has been abandoned, and it is now the doctrine that life insurance is not a contract of indemnity, but an agreement to pay a certain sum in the event therein specified, in consideration of the payment of the stipulated premium or premiums.2

In Phoenix Mutual Life Insurance Co. vs. Bailey," the Supreme Court of the United States said on this point as follows:

"Policies of life insurance are governed, in some respects, by different rules of construction from those applied by the courts in case of policies against marine risks or policies against loss by fire.

"Marine and fire policies are contracts of indemnity, by which the claim of the insured is commensurate with the damages he sustained by the loss of, or injury to, the property insured. Such being the nature of the contract, it is clear that an absolute sale of the property insured, prior to the alleged disaster, is a good defense to an action on the policy, as the insured cannot justly claim indemnity for the 1 Godsall vs. Volders, 9 East., 72. of Law, Vol. XVI, page 843. See American & English Ency. 13 Wallace, 616.

loss of or injury to property in which he had no insurable interest at the time the loss or injury occurred.

"Life insurances have sometimes been construed in the same way, but the better opinion is that the decided cases which proceed upon the ground that the insured must necessarily have some pecuniary interest in the life of the cestui que vie are founded in an erroneous view of the nature of the contract; that the contract of life insurance is not necessarily one merely of indemnity for a pecuniary loss, as in marine and fire policies; that it is sufficient to show that the policy is not invalid as a wager policy, if it appear that the relation, whether of consanguinity or of affinity, was such, between the person whose life was insured and the beneficiary named in the policy, as warrants the conclusion that the beneficiary had an interest, whether pecuniary or arising from dependence or natural affection, in the life of the person insured. Dalby vs. India and Lon. Ins. Co., 15 C. B., 365; Loomis vs. Eagle L. & H. Ins. Co., 6 Gray, 396; Lord vs. Dall, 12 Mass., 118; Trenton L. & F. Ins. Co. vs. Johnson, 4 Zab, 576; Rawls vs. Am. L. Ins. Co., 36 Barb., S. C., 27 N. Y., 282.

"Insurers in such a policy contract to pay a certain sum, in the event therein specified, in consideration of the payment of the stipulated premium or premiums, and it is enough to entitle the insured to recover if it appear that the stipulated event has happened, and that the party effecting the policy had an insurable interest, such as is described, in the life of the person insured at the inception of the contract, as the contract is not merely for an indemnity, as in marine and fire policies,"